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Maganti Subramanyan Vs. The State Of Andhra Pradesh | landholders from selling mortgaging, converting into ryoti land, leasing or otherwise assigning or alienating any communal or forest land in an estate without the previous sanction of the District Collector, on or after the date on which the Ordinance which preceded the Act came into force, namely, the 27th June, 1947. Section 4 (1) provided that: Any transaction of the nature prohibited by Section 3 which took place in the case of any communal or forest land, on or after the 31st day of October 1939 . . . . .shall be void and inoperative and shall not confer or take away, or be deemed to have conferred or taken away, any right whatever on or from any party to the transaction: * * * * * This sub-section had a proviso with several clauses. Out attention was drawn to Clauses (iii), (iv) and (v) of the proviso but in our opinion none of these provisos was applicable to the facts of the case so as to exclude the operation of sub-section (1) of Section 4. Under sub-section (3) of Section 4. If any dispute arises as to the validity of the claim of any person to any land under clauses (i) to (v) of the proviso to sub-section (1), it shall be open to such person or to any other person interested in the transaction or to the State Government, to apply to the District Judge of the district in which the land is situated, for a decision as to the validity of such claim. Under sub-section (4) the District Judge to whom such application is made was valid or not after giving notice to all persons concerned and where the application was not made by the State Government, to the Government itself, and his decision was to be final. Madras Act XXVI of 1948 was passed on April 19, 1949 being an Act to provide for the repeal of the Permanent Settlement, the acquisition of the rights of land-holders in permanently settled and certain other estates in the Province of Madras, and the introduction of ryotwari settlement in such estates.Apparently because of the preamble to the Act it was contended that with the enactment of the repeal of the Permanent Settlement by the Act of 1948 which also provided for the acquisition of the rights of land-holders in permanently settled estates, the Act stood repealed. We fail to see how because of the preamble to the Act it can be said that it stood repealed by the enactment of the later Act unless there were express words to that effect or unless there was necessary implication. It does not stand to reason to hold that the alienation of large blocks of land which were rendered void under the Act became good by reason of the passing of the later Act. Our attention was drawn on Section 63 of the later Act which provided that: If any question arises whether any land in an estate is a forest or is situated in a forest, or as to the limits of a forest, it shall be determined by the Settlement Officer, subject to an appeal to the Director within such time as may be prescribed and also to revision by the Board of Revenue. In terms the section was only prospective and it did not seek to impeach any transaction which was effected before the Act and was not applicable to transactions anterior to the Act.In our opinion Section 56 (1) of the later Act to which our attention was drawn by the learned counsel does not fall for consideration in this case and the disputes covered by that section do not embrace the question before us. 5. Madras General Clauses Act, 1 of 1891 deals with the effect of repeals of statutes. Section 8 of sub-section (f) thereof provides that; Where any Act, to which this Chapter applies, repeals any other enactment, then the repeal shall not- (a) to (c) * * * (f) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, fine, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such fine, penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed. This shows that even if there was a repeal any investigation started before the repeal would have to be continued and legal proceedings under the Act could be prosecuted as if the repealing Act had not been passed. 6. There is also no force in the contention that unless there was a notification under Section 2 (b) of the Act declaring a particular land to be forest land, a particular of the Act would be excluded.The definition of forest land in that section is an inclusive one and shows that forest land would include not only waste land containing trees, shrubs and pasture lands but also any other class of lands declared by Government to be forest land. This does not mean that before a piece of land could be said to be a firest land there would have to be a notification by the Government under the Act. 7. Lastly, counsel contended that sub-section (1) of Section 20 of the later Act as originally enacted applied to forest lands and therefore the later Act became applicable thereto. The original section was however substituted, for another by Section 9 of the Madras Estates (Abolition and Conversion into Ryotwari) (Amendment) Act, 1956 which was to be deemed to have come into force on April 19, 1949 being the date on which the Act of 1948 originally came into force. The section as it now stands did not confer any jurisdiction on the Settlement Officer to determine any question as to whether any land was forest land within the meaning of the Act and consequently the adjudication by the District Judge under sub-section (4) of Section 4 was quite competent. | 0[ds]In terms the section was only prospective and it did not seek to impeach any transaction which was effected before the Act and was not applicable to transactions anterior to the Act.In our opinion Section 56 (1) of the later Act to which our attention was drawn by the learned counsel does not fall for consideration in this case and the disputes covered by that section do not embrace the question before usThis shows that even if there was a repeal any investigation started before the repeal would have to be continued and legal proceedings under the Act could be prosecuted as if the repealing Act had not been passed7. Lastly, counsel contended thatsub-section (1) of Section20 of the later Act as originally enacted applied to forest lands and therefore the later Act became applicable thereto.The original section was however substituted, for another by Section 9 of the Madras Estates (Abolition and Conversion into Ryotwari) (Amendment) Act, 1956 which was to be deemed to have come into force on April 19, 1949 being the date on which the Act of 1948 originally came into force. The section as it now stands did not confer any jurisdiction on the Settlement Officer to determine any question as to whether any land was forest land within the meaning of the Act and consequently the adjudication by the District Judge under sub-section (4) of Section 4 was quite competent. | 0 | 2,048 | 256 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
landholders from selling mortgaging, converting into ryoti land, leasing or otherwise assigning or alienating any communal or forest land in an estate without the previous sanction of the District Collector, on or after the date on which the Ordinance which preceded the Act came into force, namely, the 27th June, 1947. Section 4 (1) provided that: Any transaction of the nature prohibited by Section 3 which took place in the case of any communal or forest land, on or after the 31st day of October 1939 . . . . .shall be void and inoperative and shall not confer or take away, or be deemed to have conferred or taken away, any right whatever on or from any party to the transaction: * * * * * This sub-section had a proviso with several clauses. Out attention was drawn to Clauses (iii), (iv) and (v) of the proviso but in our opinion none of these provisos was applicable to the facts of the case so as to exclude the operation of sub-section (1) of Section 4. Under sub-section (3) of Section 4. If any dispute arises as to the validity of the claim of any person to any land under clauses (i) to (v) of the proviso to sub-section (1), it shall be open to such person or to any other person interested in the transaction or to the State Government, to apply to the District Judge of the district in which the land is situated, for a decision as to the validity of such claim. Under sub-section (4) the District Judge to whom such application is made was valid or not after giving notice to all persons concerned and where the application was not made by the State Government, to the Government itself, and his decision was to be final. Madras Act XXVI of 1948 was passed on April 19, 1949 being an Act to provide for the repeal of the Permanent Settlement, the acquisition of the rights of land-holders in permanently settled and certain other estates in the Province of Madras, and the introduction of ryotwari settlement in such estates.Apparently because of the preamble to the Act it was contended that with the enactment of the repeal of the Permanent Settlement by the Act of 1948 which also provided for the acquisition of the rights of land-holders in permanently settled estates, the Act stood repealed. We fail to see how because of the preamble to the Act it can be said that it stood repealed by the enactment of the later Act unless there were express words to that effect or unless there was necessary implication. It does not stand to reason to hold that the alienation of large blocks of land which were rendered void under the Act became good by reason of the passing of the later Act. Our attention was drawn on Section 63 of the later Act which provided that: If any question arises whether any land in an estate is a forest or is situated in a forest, or as to the limits of a forest, it shall be determined by the Settlement Officer, subject to an appeal to the Director within such time as may be prescribed and also to revision by the Board of Revenue. In terms the section was only prospective and it did not seek to impeach any transaction which was effected before the Act and was not applicable to transactions anterior to the Act.In our opinion Section 56 (1) of the later Act to which our attention was drawn by the learned counsel does not fall for consideration in this case and the disputes covered by that section do not embrace the question before us. 5. Madras General Clauses Act, 1 of 1891 deals with the effect of repeals of statutes. Section 8 of sub-section (f) thereof provides that; Where any Act, to which this Chapter applies, repeals any other enactment, then the repeal shall not- (a) to (c) * * * (f) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, fine, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such fine, penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed. This shows that even if there was a repeal any investigation started before the repeal would have to be continued and legal proceedings under the Act could be prosecuted as if the repealing Act had not been passed. 6. There is also no force in the contention that unless there was a notification under Section 2 (b) of the Act declaring a particular land to be forest land, a particular of the Act would be excluded.The definition of forest land in that section is an inclusive one and shows that forest land would include not only waste land containing trees, shrubs and pasture lands but also any other class of lands declared by Government to be forest land. This does not mean that before a piece of land could be said to be a firest land there would have to be a notification by the Government under the Act. 7. Lastly, counsel contended that sub-section (1) of Section 20 of the later Act as originally enacted applied to forest lands and therefore the later Act became applicable thereto. The original section was however substituted, for another by Section 9 of the Madras Estates (Abolition and Conversion into Ryotwari) (Amendment) Act, 1956 which was to be deemed to have come into force on April 19, 1949 being the date on which the Act of 1948 originally came into force. The section as it now stands did not confer any jurisdiction on the Settlement Officer to determine any question as to whether any land was forest land within the meaning of the Act and consequently the adjudication by the District Judge under sub-section (4) of Section 4 was quite competent.
### Response:
0
### Explanation:
In terms the section was only prospective and it did not seek to impeach any transaction which was effected before the Act and was not applicable to transactions anterior to the Act.In our opinion Section 56 (1) of the later Act to which our attention was drawn by the learned counsel does not fall for consideration in this case and the disputes covered by that section do not embrace the question before usThis shows that even if there was a repeal any investigation started before the repeal would have to be continued and legal proceedings under the Act could be prosecuted as if the repealing Act had not been passed7. Lastly, counsel contended thatsub-section (1) of Section20 of the later Act as originally enacted applied to forest lands and therefore the later Act became applicable thereto.The original section was however substituted, for another by Section 9 of the Madras Estates (Abolition and Conversion into Ryotwari) (Amendment) Act, 1956 which was to be deemed to have come into force on April 19, 1949 being the date on which the Act of 1948 originally came into force. The section as it now stands did not confer any jurisdiction on the Settlement Officer to determine any question as to whether any land was forest land within the meaning of the Act and consequently the adjudication by the District Judge under sub-section (4) of Section 4 was quite competent.
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ATIC Industries Ltd Vs. H. H. Dave and Ors | be deemed to be the wholesale cash price for which the article is sold or is capable of being sold and it does not say which wholesale cash price shall be taken to be the value of the article - that charged by the manufacturer to the wholesale dealer or that charged by the wholesale dealer who having purchased the article from the manufacturer sells it in wholesale to another dealer. The latter price, they pointed out, would equally be the wholesale cash price within the meaning of Section 4 (a) as it would be the price at which the article is sold or in any event capable of being sold in the wholesale market and there is no reason why it should not be taken to be the value of the article for the purpose of assessment under S. 4 (a). The contention, therefore, was that the price charged by ICI and Atul to the dealers less trade discount allowed to them should be taken to be the assessable value of the dye-stuffs and not the price charged by the appellants to ICI and Atul less trade discount of 18%. This contention is without force and must be rejected. It violates two basic principles underlying imposition of excise -duty.12. In the first place, as pointed out by Mathew, J., in Voltas case (supra), "excise is a tax on the production and manufacture of goods...Section 4 of the Act therefore provides that the real value should be found after deducting the selling cost and selling profit and that the real value can include only the manufacturing cost and the manufacturing profit. The section makes it clear that excise is levied only on the amount representing the manufacturing cost plus the manufacturing profit and excludes post-manufacturing cost and the profit arising from post manufacturing operation, namely, selling profit."The value of the goods for the purpose of excise must take into account only the manufacturing cost and the manufacturing profit and it must not be loaded with post-manufacturing cost or profit arising from post-manufacturing operation. The price charged by the manufacturer for sale of the goods in wholesale would, therefore, represent the real value of the goods for the purpose of assessment of excise duty. If the price charged by the wholesale dealer who purchases the goods from the manufacturer and sells them in wholesale to another dealer were taken as the value of the goods, it would include not only the manufacturing cost and the manufacturing profit of the manufacturer but also the wholesale dealers selling cost and selling profit and that would be wholly incompatible with the nature of excise. It may be noted that whole sale market in a particular type of goods may be in several tiers and the goods may reach the consumer after a series of wholesale transactions. In-fact the more common and less expensive the goods there would be greater possibility of more than one tier of wholesale transactions. For instance, in a textile trade, a manufacturer may sell his entire production to a single wholesale dealer and the latter may in his turn sell the goods purchased by him from the manufacturer to different wholesale dealers at State level, and they may in their turn sell the goods to wholesale dealers at the district level and from the wholesale dealers at the district level the goods may pass by sale to wholesale dealers at the city level and then, ultimately from the wholesale dealers at the city level, the goods may reach the consumers. The only relevant price for assessment of value of the goods for the purpose of excise in such a case would be the wholesale cash price which the manufacturer receives from sale to the first wholesale dealer, that is, when the goods first enter the stream of trade. Once the goods have entered the stream of trade and are on their onward journey to the consumer, whether along a short or a long course depending on the nature of the goods and the conditions of the trade, excise is not concerned with what happens subsequently to the goods. It is the first immediate contact between the manufacturer and the trade that is made decisive for determining the wholesale cash price which is to be the measure of the value of the goods for the purpose of excise. The second or subsequent price, even though on wholesale basis, is not material. If excise were levied on the basis of second or subsequent wholesale price, it would load the price with a post-manufacturing element, namely, selling cost and selling profit of the wholesale dealer. That would be plainly contrary to the true nature of excise as explained in the Voltas case (supra). Secondly, this would also violate the concept of the factory gate sale which is the basis of determination of value of the goods for the purpose of excise.13. There can, therefore, be no doubt that where a manufacturer sells the goods manufactured by him in wholesale to a wholesale dealer at arms length and in the usual course of business, the wholesale cash price charged by him to the wholesale dealer less trade discount would represent the value of the goods for the purpose of assessment of excise. That would be the wholesale cash price for which the goods are sold at the factory gate within the meaning of Section 4 (a). The price received by the wholesale dealer who purchases the goods from the manufacturer and in his turn sells the same in wholesale to other dealers would be irrelevant to the determination of the value and the goods would not be chargeable to excise on that basis. The conclusion is, therefore, inescapable that the assessable value of the dye-stuffs manufactured by the appellants must be taken to be the price at which they were sold by the appellants to ICI and Atul less 18% trade discount, and not the price charged by ICI and Atul to their dealers. | 1[ds]10. This decision provides a complete refutation of the view taken by the High Court in the present case. In fact, the present case is much stronger than the Voltas caseon the contrary, no retail sales at all were effected by the appellants and the entire production was sold in wholesale to ICI and Atul under agreements entered into with them. Moreover, it was not in dispute between the parties that the agreements entered into by the appellants with ICI and Atul were made at arms length and in the usual course of business. It was not the case of the Excise Authorities at any time that specially low prices were charged by the appellants to ICI and Atul because of extra commercial considerations or that the agreements were anything but fair and reasonable or arrived at on purely commercial basis. The wholesale dealings between the appellants and ICI and Atul were purely commercial dealings at arms length and the price charged by the appellants for sales in wholesale made to ICI and Atul less trade discount of 18% was, therefore, clearly wholesale cash price within the meaning of Section 4 (a) and it did not make any difference that the wholesale dealings of the appellants were confined exclusively to ICI and Atul and apart from these two, no independent buyers could purchase the dye-stuffs in wholesale from thecontention, therefore, was that the price charged by ICI and Atul to the dealers less trade discount allowed to them should be taken to be the assessable value of the dye-stuffs and not the price charged by the appellants to ICI and Atul less trade discount of 18%. This contention is without force and must be rejected. It violates two basic principles underlying imposition of excise -duty.12. In the first place, as pointed out by Mathew, J., in Voltas case (supra), "excise is a tax on the production and manufacture of goods...Section 4 of the Act therefore provides that the real value should be found after deducting the selling cost and selling profit and that the real value can include only the manufacturing cost and the manufacturing profit. The section makes it clear that excise is levied only on the amount representing the manufacturing cost plus the manufacturing profit and excludes post-manufacturing cost and the profit arising from post manufacturing operation, namely, selling profit."The value of the goods for the purpose of excise must take into account only the manufacturing cost and the manufacturing profit and it must not be loaded with post-manufacturing cost or profit arising from post-manufacturing operation. The price charged by the manufacturer for sale of the goods in wholesale would, therefore, represent the real value of the goods for the purpose of assessment of excise duty. If the price charged by the wholesale dealer who purchases the goods from the manufacturer and sells them in wholesale to another dealer were taken as the value of the goods, it would include not only the manufacturing cost and the manufacturing profit of the manufacturer but also the wholesale dealers selling cost and selling profit and that would be wholly incompatible with the nature of excise. It may be noted that whole sale market in a particular type of goods may be in several tiers and the goods may reach the consumer after a series of wholesale transactions. In-fact the more common and less expensive the goods there would be greater possibility of more than one tier of wholesale transactions. For instance, in a textile trade, a manufacturer may sell his entire production to a single wholesale dealer and the latter may in his turn sell the goods purchased by him from the manufacturer to different wholesale dealers at State level, and they may in their turn sell the goods to wholesale dealers at the district level and from the wholesale dealers at the district level the goods may pass by sale to wholesale dealers at the city level and then, ultimately from the wholesale dealers at the city level, the goods may reach the consumers. The only relevant price for assessment of value of the goods for the purpose of excise in such a case would be the wholesale cash price which the manufacturer receives from sale to the first wholesale dealer, that is, when the goods first enter the stream of trade. Once the goods have entered the stream of trade and are on their onward journey to the consumer, whether along a short or a long course depending on the nature of the goods and the conditions of the trade, excise is not concerned with what happens subsequently to the goods. It is the first immediate contact between the manufacturer and the trade that is made decisive for determining the wholesale cash price which is to be the measure of the value of the goods for the purpose of excise. The second or subsequent price, even though on wholesale basis, is not material. If excise were levied on the basis of second or subsequent wholesale price, it would load the price with a post-manufacturing element, namely, selling cost and selling profit of the wholesale dealer. That would be plainly contrary to the true nature of excise as explained in the Voltas case (supra). Secondly, this would also violate the concept of the factory gate sale which is the basis of determination of value of the goods for the purpose of excise.13. There can, therefore, be no doubt that where a manufacturer sells the goods manufactured by him in wholesale to a wholesale dealer at arms length and in the usual course of business, the wholesale cash price charged by him to the wholesale dealer less trade discount would represent the value of the goods for the purpose of assessment of excise. That would be the wholesale cash price for which the goods are sold at the factory gate within the meaning of Section 4 (a). The price received by the wholesale dealer who purchases the goods from the manufacturer and in his turn sells the same in wholesale to other dealers would be irrelevant to the determination of the value and the goods would not be chargeable to excise on that basis. The conclusion is, therefore, inescapable that the assessable value of the dye-stuffs manufactured by the appellants must be taken to be the price at which they were sold by the appellants to ICI and Atul less 18% trade discount, and not the price charged by ICI and Atul to their dealers. | 1 | 5,440 | 1,170 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
be deemed to be the wholesale cash price for which the article is sold or is capable of being sold and it does not say which wholesale cash price shall be taken to be the value of the article - that charged by the manufacturer to the wholesale dealer or that charged by the wholesale dealer who having purchased the article from the manufacturer sells it in wholesale to another dealer. The latter price, they pointed out, would equally be the wholesale cash price within the meaning of Section 4 (a) as it would be the price at which the article is sold or in any event capable of being sold in the wholesale market and there is no reason why it should not be taken to be the value of the article for the purpose of assessment under S. 4 (a). The contention, therefore, was that the price charged by ICI and Atul to the dealers less trade discount allowed to them should be taken to be the assessable value of the dye-stuffs and not the price charged by the appellants to ICI and Atul less trade discount of 18%. This contention is without force and must be rejected. It violates two basic principles underlying imposition of excise -duty.12. In the first place, as pointed out by Mathew, J., in Voltas case (supra), "excise is a tax on the production and manufacture of goods...Section 4 of the Act therefore provides that the real value should be found after deducting the selling cost and selling profit and that the real value can include only the manufacturing cost and the manufacturing profit. The section makes it clear that excise is levied only on the amount representing the manufacturing cost plus the manufacturing profit and excludes post-manufacturing cost and the profit arising from post manufacturing operation, namely, selling profit."The value of the goods for the purpose of excise must take into account only the manufacturing cost and the manufacturing profit and it must not be loaded with post-manufacturing cost or profit arising from post-manufacturing operation. The price charged by the manufacturer for sale of the goods in wholesale would, therefore, represent the real value of the goods for the purpose of assessment of excise duty. If the price charged by the wholesale dealer who purchases the goods from the manufacturer and sells them in wholesale to another dealer were taken as the value of the goods, it would include not only the manufacturing cost and the manufacturing profit of the manufacturer but also the wholesale dealers selling cost and selling profit and that would be wholly incompatible with the nature of excise. It may be noted that whole sale market in a particular type of goods may be in several tiers and the goods may reach the consumer after a series of wholesale transactions. In-fact the more common and less expensive the goods there would be greater possibility of more than one tier of wholesale transactions. For instance, in a textile trade, a manufacturer may sell his entire production to a single wholesale dealer and the latter may in his turn sell the goods purchased by him from the manufacturer to different wholesale dealers at State level, and they may in their turn sell the goods to wholesale dealers at the district level and from the wholesale dealers at the district level the goods may pass by sale to wholesale dealers at the city level and then, ultimately from the wholesale dealers at the city level, the goods may reach the consumers. The only relevant price for assessment of value of the goods for the purpose of excise in such a case would be the wholesale cash price which the manufacturer receives from sale to the first wholesale dealer, that is, when the goods first enter the stream of trade. Once the goods have entered the stream of trade and are on their onward journey to the consumer, whether along a short or a long course depending on the nature of the goods and the conditions of the trade, excise is not concerned with what happens subsequently to the goods. It is the first immediate contact between the manufacturer and the trade that is made decisive for determining the wholesale cash price which is to be the measure of the value of the goods for the purpose of excise. The second or subsequent price, even though on wholesale basis, is not material. If excise were levied on the basis of second or subsequent wholesale price, it would load the price with a post-manufacturing element, namely, selling cost and selling profit of the wholesale dealer. That would be plainly contrary to the true nature of excise as explained in the Voltas case (supra). Secondly, this would also violate the concept of the factory gate sale which is the basis of determination of value of the goods for the purpose of excise.13. There can, therefore, be no doubt that where a manufacturer sells the goods manufactured by him in wholesale to a wholesale dealer at arms length and in the usual course of business, the wholesale cash price charged by him to the wholesale dealer less trade discount would represent the value of the goods for the purpose of assessment of excise. That would be the wholesale cash price for which the goods are sold at the factory gate within the meaning of Section 4 (a). The price received by the wholesale dealer who purchases the goods from the manufacturer and in his turn sells the same in wholesale to other dealers would be irrelevant to the determination of the value and the goods would not be chargeable to excise on that basis. The conclusion is, therefore, inescapable that the assessable value of the dye-stuffs manufactured by the appellants must be taken to be the price at which they were sold by the appellants to ICI and Atul less 18% trade discount, and not the price charged by ICI and Atul to their dealers.
### Response:
1
### Explanation:
arms length and in the usual course of business. It was not the case of the Excise Authorities at any time that specially low prices were charged by the appellants to ICI and Atul because of extra commercial considerations or that the agreements were anything but fair and reasonable or arrived at on purely commercial basis. The wholesale dealings between the appellants and ICI and Atul were purely commercial dealings at arms length and the price charged by the appellants for sales in wholesale made to ICI and Atul less trade discount of 18% was, therefore, clearly wholesale cash price within the meaning of Section 4 (a) and it did not make any difference that the wholesale dealings of the appellants were confined exclusively to ICI and Atul and apart from these two, no independent buyers could purchase the dye-stuffs in wholesale from thecontention, therefore, was that the price charged by ICI and Atul to the dealers less trade discount allowed to them should be taken to be the assessable value of the dye-stuffs and not the price charged by the appellants to ICI and Atul less trade discount of 18%. This contention is without force and must be rejected. It violates two basic principles underlying imposition of excise -duty.12. In the first place, as pointed out by Mathew, J., in Voltas case (supra), "excise is a tax on the production and manufacture of goods...Section 4 of the Act therefore provides that the real value should be found after deducting the selling cost and selling profit and that the real value can include only the manufacturing cost and the manufacturing profit. The section makes it clear that excise is levied only on the amount representing the manufacturing cost plus the manufacturing profit and excludes post-manufacturing cost and the profit arising from post manufacturing operation, namely, selling profit."The value of the goods for the purpose of excise must take into account only the manufacturing cost and the manufacturing profit and it must not be loaded with post-manufacturing cost or profit arising from post-manufacturing operation. The price charged by the manufacturer for sale of the goods in wholesale would, therefore, represent the real value of the goods for the purpose of assessment of excise duty. If the price charged by the wholesale dealer who purchases the goods from the manufacturer and sells them in wholesale to another dealer were taken as the value of the goods, it would include not only the manufacturing cost and the manufacturing profit of the manufacturer but also the wholesale dealers selling cost and selling profit and that would be wholly incompatible with the nature of excise. It may be noted that whole sale market in a particular type of goods may be in several tiers and the goods may reach the consumer after a series of wholesale transactions. In-fact the more common and less expensive the goods there would be greater possibility of more than one tier of wholesale transactions. For instance, in a textile trade, a manufacturer may sell his entire production to a single wholesale dealer and the latter may in his turn sell the goods purchased by him from the manufacturer to different wholesale dealers at State level, and they may in their turn sell the goods to wholesale dealers at the district level and from the wholesale dealers at the district level the goods may pass by sale to wholesale dealers at the city level and then, ultimately from the wholesale dealers at the city level, the goods may reach the consumers. The only relevant price for assessment of value of the goods for the purpose of excise in such a case would be the wholesale cash price which the manufacturer receives from sale to the first wholesale dealer, that is, when the goods first enter the stream of trade. Once the goods have entered the stream of trade and are on their onward journey to the consumer, whether along a short or a long course depending on the nature of the goods and the conditions of the trade, excise is not concerned with what happens subsequently to the goods. It is the first immediate contact between the manufacturer and the trade that is made decisive for determining the wholesale cash price which is to be the measure of the value of the goods for the purpose of excise. The second or subsequent price, even though on wholesale basis, is not material. If excise were levied on the basis of second or subsequent wholesale price, it would load the price with a post-manufacturing element, namely, selling cost and selling profit of the wholesale dealer. That would be plainly contrary to the true nature of excise as explained in the Voltas case (supra). Secondly, this would also violate the concept of the factory gate sale which is the basis of determination of value of the goods for the purpose of excise.13. There can, therefore, be no doubt that where a manufacturer sells the goods manufactured by him in wholesale to a wholesale dealer at arms length and in the usual course of business, the wholesale cash price charged by him to the wholesale dealer less trade discount would represent the value of the goods for the purpose of assessment of excise. That would be the wholesale cash price for which the goods are sold at the factory gate within the meaning of Section 4 (a). The price received by the wholesale dealer who purchases the goods from the manufacturer and in his turn sells the same in wholesale to other dealers would be irrelevant to the determination of the value and the goods would not be chargeable to excise on that basis. The conclusion is, therefore, inescapable that the assessable value of the dye-stuffs manufactured by the appellants must be taken to be the price at which they were sold by the appellants to ICI and Atul less 18% trade discount, and not the price charged by ICI and Atul to their dealers.
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Eugenio Misquita & Others Vs. State of Goa & Others | language used in the Act or, applying the test of Mischief Rule of interpreting the Statute, or looking from the point of view of legislative intention, the conclusion is irresistible that the act of making it known public, in official manner and, that act has to be performed within a period of one year from the date of notification under S.4(1). The act of making declaration known in the official manner has been prescribed under S.6(2) of the Act. The principle is well settled that where any statutory provision provides a particular manner for doing particular act, then, that thing or act must be done in accordance with the manner prescribed. Therefore, the act of making declaration of Governments satisfaction in regard to the requirement of the particular land for any public purpose is complete only when the same is made known by publishing the said satisfaction in the manner prescribed under S.6(2), for the purpose of further proceedings in the matter of land acquisition, in terms of the other provisions of the Act. It is only after the publication of the declaration in the manner prescribed under S.6(2) that it becomes a declaration which is conclusive proof of the fact that land is needed for public purpose and it is only `making of such declaration, which furnishes conclusive proof of such satisfaction that authorises the appropriate Government to acquire land in the manner thereafter provided under the Act. It is only after making such declaration that the appropriate Government can issue directions to the Collector to take orders for acquisition of land under S.7 of the Act. It is only after making of such declaration which includes publication thereof also, that provisions of S.11-A becomes effective in suppressing the mischief of which it has been enacted.Summing up of aforesaid discussion, is that making of a declaration u/s 6(1) within its ambit includes the act of making the document of declaration known or published officially. Sub-sec. (2) of S.6 provides only the modes of publication of declaration in all the modes prescribed under S.6(2) has to be made within the period prescribed under S.6(1)." 13. The learned Judge of the Rajasthan High Court is right to a limited extent when he observed: `the conclusion is irresistible that the act of `making declaration by the appropriate Government that any particular land is needed for public purpose, include the act of making it known public, in official manner and, that act has to be performed within a period of one year from the date of notification under S.4(1)." However, the learned Judge erred in holding thus: "It is only after the publication of the declaration in the manner prescribed under S.6(2) that it becomes a declaration which is conclusive proof of the fact that the land is needed for public purpose and it is only "making of such declaration", which furnishes conclusive proof of such satisfaction", because there is nothing in the Statute to suggest by publishing in the Official Gazette the `making of declaration has not been achieved nor is there anything in the Statute to show that the modes of publications prescribed under Section 6(2) notwithstanding the express language used in that Section about which we have already pointed out, namely, `hereinafter those modes also govern the publication at the prior stage, namely, under Section 6(1). 14. Therefore, we hold that the judgment of the Rajasthan High Court does not correctly lay down the law. 15. In State of Haryana &Anr. Vs. Raghubir Dayal, this Court had occasion to consider the effect of failure to publish the substance of the declaration under Section 6 in the locality. This Court in that context held thus:- "The purpose of publication of the declaration is to give effect to the conclusiveness of the extent of the land needed for the public purpose or for a company as made under Section 6(3) of the Act. Since there is an opportunity already given to the owner of the land or persons having interest in the land to raise their objections during the enquiry under Section 5- A, or otherwise in case of dispensing with enquiry under Section 5-A unless they show any grave prejudice caused to them in non-publication of the substance of the declaration under Section 6(1), the omission to publish the substance of the declaration under Section 6(1) in the locality would not render the declaration of Section 6 invalid. We are not intending to say that the officer should not comply with the requirement of law and it is their duty to do it. But their dereliction to do so per se does not render the declaration under Section 6 illegal or invalid." * 16. The above view of this Court lends support to the view that for the purpose of calculating the limitation prescribed under proviso to Section 6(1)(ii), it is not the last of the publication in the series that should be taken into account, but the publication that was made in the first instance under Section 6. 17. In the light of the law laid down by this Court, we have no hesitation to hold that the declaration published under Section 6 of the Act was well within one year and the challenge to the same has been rightly rejected by the High Court. However, the view taken in the judgment of the High Court under appeal that the relevant date for reckoning the period of limitation will be the date of making of the declaration under Section 6, may not be correct. As held in Krishi Utpadan Mandi Samitis case, mere making of declaration is not enough. The making of declaration under Section 6 is complete for the purpose of Proviso to Section 6(1)(i) &ii) when it is published in the official gazette.On facts we have seen that the Notification was lastly published on 6.8.92 in the Official Gazette and declaration under Section 6 was published in the Gazette on 5.8.93 which is well within one year. 18. | 0[ds]It is now well settled that the last of the dates in the series of the publications made under Section 4 (1) of the Act is the relevant date to reckon the starting point of limitation for the purpose of proviso to Section 6(1) (ii). Now, the question is which is the relevant date to reckon the last date for the purpose of proviso to Section (1) (ii). In other words, whetherthe modes of publication prescribed under Section 6(2) obviously for the purpose of reckoning limitation under Section 11-A of the Act have any part to play in the matter of computing the period prescribed under proviso to Sectionseen from the above extracts of relevant provisions, while Section 4(1) commands publication of notification under that Section. Section 6 speaks of the declaration being made to the effect that any particular land is needed for public purpose or for a company. There are judicial decisions that have interpreted the word `made to mean `published for the reasons stated in those decisions. Therefore, strictly speaking, but for those decisions. Therefore, strictly speaking, but for those judicial decisions the date of making of the declaration under Section 6(1) will be the relevant date for reckoning the period of limitation. However, in the interest of general public, the courts have taken the view that the declaration made will stand accomplished only when it is published. This publication has, therefore, nothing to do with the publication referred to in Section 6(2) of the Act which is for a different purpose, inter alia, for reckoning the limitation prescribed under Section 11-A of the Act. This construction is supported by the language employed in Section 6(2) of the Act. In particular, the word "hereinafter" used in Section 6(2) will amply prove that the last of the series of the publication referred to under Section 6(2) is relevant for the purposes coming thereafter, namely, for making award under Section 11-A. The language employed in second proviso to Section 6 (1) also supports this construction. Therefore, the contention of learned counsel cannot belearned Judge of the Rajasthan High Court is right to a limited extent when he observed: `the conclusion is irresistible that the act of `making declaration by the appropriate Government that any particular land is needed for public purpose, include the act of making it known public, in official manner and, that act has to be performed within a period of one year from the date of notification under S.4(1)." However, the learned Judge erred in holding thus: "It is only after the publication of the declaration in the manner prescribed under S.6(2) that it becomes a declaration which is conclusive proof of the fact that the land is needed for public purpose and it is only "making of such declaration", which furnishes conclusive proof of such satisfaction", because there is nothing in the Statute to suggest by publishing in the Official Gazette the `making of declaration has not been achieved nor is there anything in the Statute to show that the modes of publications prescribed under Section 6(2) notwithstanding the express language used in that Section about which we have already pointed out, namely, `hereinafter those modes also govern the publication at the prior stage, namely, under Sectionwe hold that the judgment of the Rajasthan High Court does not correctly lay down theabove view of this Court lends support to the view that for the purpose of calculating the limitation prescribed under proviso to Section 6(1)(ii), it is not the last of the publication in the series that should be taken into account, but the publication that was made in the first instance under Sectionthe light of the law laid down by this Court, we have no hesitation to hold that the declaration published under Section 6 of the Act was well within one year and the challenge to the same has been rightly rejected by the High Court. However, the view taken in the judgment of the High Court under appeal that the relevant date for reckoning the period of limitation will be the date of making of the declaration under Section 6, may not be correct. As held in Krishi Utpadan Mandi Samitis case, mere making of declaration is not enough. The making of declaration under Section 6 is complete for the purpose of Proviso to Section 6(1)(i) &ii) when it is published in the official gazette.On facts we have seen that the Notification was lastly published on 6.8.92 in the Official Gazette and declaration under Section 6 was published in the Gazette on 5.8.93 which is well within one year. | 0 | 5,509 | 894 | ### 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:
language used in the Act or, applying the test of Mischief Rule of interpreting the Statute, or looking from the point of view of legislative intention, the conclusion is irresistible that the act of making it known public, in official manner and, that act has to be performed within a period of one year from the date of notification under S.4(1). The act of making declaration known in the official manner has been prescribed under S.6(2) of the Act. The principle is well settled that where any statutory provision provides a particular manner for doing particular act, then, that thing or act must be done in accordance with the manner prescribed. Therefore, the act of making declaration of Governments satisfaction in regard to the requirement of the particular land for any public purpose is complete only when the same is made known by publishing the said satisfaction in the manner prescribed under S.6(2), for the purpose of further proceedings in the matter of land acquisition, in terms of the other provisions of the Act. It is only after the publication of the declaration in the manner prescribed under S.6(2) that it becomes a declaration which is conclusive proof of the fact that land is needed for public purpose and it is only `making of such declaration, which furnishes conclusive proof of such satisfaction that authorises the appropriate Government to acquire land in the manner thereafter provided under the Act. It is only after making such declaration that the appropriate Government can issue directions to the Collector to take orders for acquisition of land under S.7 of the Act. It is only after making of such declaration which includes publication thereof also, that provisions of S.11-A becomes effective in suppressing the mischief of which it has been enacted.Summing up of aforesaid discussion, is that making of a declaration u/s 6(1) within its ambit includes the act of making the document of declaration known or published officially. Sub-sec. (2) of S.6 provides only the modes of publication of declaration in all the modes prescribed under S.6(2) has to be made within the period prescribed under S.6(1)." 13. The learned Judge of the Rajasthan High Court is right to a limited extent when he observed: `the conclusion is irresistible that the act of `making declaration by the appropriate Government that any particular land is needed for public purpose, include the act of making it known public, in official manner and, that act has to be performed within a period of one year from the date of notification under S.4(1)." However, the learned Judge erred in holding thus: "It is only after the publication of the declaration in the manner prescribed under S.6(2) that it becomes a declaration which is conclusive proof of the fact that the land is needed for public purpose and it is only "making of such declaration", which furnishes conclusive proof of such satisfaction", because there is nothing in the Statute to suggest by publishing in the Official Gazette the `making of declaration has not been achieved nor is there anything in the Statute to show that the modes of publications prescribed under Section 6(2) notwithstanding the express language used in that Section about which we have already pointed out, namely, `hereinafter those modes also govern the publication at the prior stage, namely, under Section 6(1). 14. Therefore, we hold that the judgment of the Rajasthan High Court does not correctly lay down the law. 15. In State of Haryana &Anr. Vs. Raghubir Dayal, this Court had occasion to consider the effect of failure to publish the substance of the declaration under Section 6 in the locality. This Court in that context held thus:- "The purpose of publication of the declaration is to give effect to the conclusiveness of the extent of the land needed for the public purpose or for a company as made under Section 6(3) of the Act. Since there is an opportunity already given to the owner of the land or persons having interest in the land to raise their objections during the enquiry under Section 5- A, or otherwise in case of dispensing with enquiry under Section 5-A unless they show any grave prejudice caused to them in non-publication of the substance of the declaration under Section 6(1), the omission to publish the substance of the declaration under Section 6(1) in the locality would not render the declaration of Section 6 invalid. We are not intending to say that the officer should not comply with the requirement of law and it is their duty to do it. But their dereliction to do so per se does not render the declaration under Section 6 illegal or invalid." * 16. The above view of this Court lends support to the view that for the purpose of calculating the limitation prescribed under proviso to Section 6(1)(ii), it is not the last of the publication in the series that should be taken into account, but the publication that was made in the first instance under Section 6. 17. In the light of the law laid down by this Court, we have no hesitation to hold that the declaration published under Section 6 of the Act was well within one year and the challenge to the same has been rightly rejected by the High Court. However, the view taken in the judgment of the High Court under appeal that the relevant date for reckoning the period of limitation will be the date of making of the declaration under Section 6, may not be correct. As held in Krishi Utpadan Mandi Samitis case, mere making of declaration is not enough. The making of declaration under Section 6 is complete for the purpose of Proviso to Section 6(1)(i) &ii) when it is published in the official gazette.On facts we have seen that the Notification was lastly published on 6.8.92 in the Official Gazette and declaration under Section 6 was published in the Gazette on 5.8.93 which is well within one year. 18.
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0
### Explanation:
It is now well settled that the last of the dates in the series of the publications made under Section 4 (1) of the Act is the relevant date to reckon the starting point of limitation for the purpose of proviso to Section 6(1) (ii). Now, the question is which is the relevant date to reckon the last date for the purpose of proviso to Section (1) (ii). In other words, whetherthe modes of publication prescribed under Section 6(2) obviously for the purpose of reckoning limitation under Section 11-A of the Act have any part to play in the matter of computing the period prescribed under proviso to Sectionseen from the above extracts of relevant provisions, while Section 4(1) commands publication of notification under that Section. Section 6 speaks of the declaration being made to the effect that any particular land is needed for public purpose or for a company. There are judicial decisions that have interpreted the word `made to mean `published for the reasons stated in those decisions. Therefore, strictly speaking, but for those decisions. Therefore, strictly speaking, but for those judicial decisions the date of making of the declaration under Section 6(1) will be the relevant date for reckoning the period of limitation. However, in the interest of general public, the courts have taken the view that the declaration made will stand accomplished only when it is published. This publication has, therefore, nothing to do with the publication referred to in Section 6(2) of the Act which is for a different purpose, inter alia, for reckoning the limitation prescribed under Section 11-A of the Act. This construction is supported by the language employed in Section 6(2) of the Act. In particular, the word "hereinafter" used in Section 6(2) will amply prove that the last of the series of the publication referred to under Section 6(2) is relevant for the purposes coming thereafter, namely, for making award under Section 11-A. The language employed in second proviso to Section 6 (1) also supports this construction. Therefore, the contention of learned counsel cannot belearned Judge of the Rajasthan High Court is right to a limited extent when he observed: `the conclusion is irresistible that the act of `making declaration by the appropriate Government that any particular land is needed for public purpose, include the act of making it known public, in official manner and, that act has to be performed within a period of one year from the date of notification under S.4(1)." However, the learned Judge erred in holding thus: "It is only after the publication of the declaration in the manner prescribed under S.6(2) that it becomes a declaration which is conclusive proof of the fact that the land is needed for public purpose and it is only "making of such declaration", which furnishes conclusive proof of such satisfaction", because there is nothing in the Statute to suggest by publishing in the Official Gazette the `making of declaration has not been achieved nor is there anything in the Statute to show that the modes of publications prescribed under Section 6(2) notwithstanding the express language used in that Section about which we have already pointed out, namely, `hereinafter those modes also govern the publication at the prior stage, namely, under Sectionwe hold that the judgment of the Rajasthan High Court does not correctly lay down theabove view of this Court lends support to the view that for the purpose of calculating the limitation prescribed under proviso to Section 6(1)(ii), it is not the last of the publication in the series that should be taken into account, but the publication that was made in the first instance under Sectionthe light of the law laid down by this Court, we have no hesitation to hold that the declaration published under Section 6 of the Act was well within one year and the challenge to the same has been rightly rejected by the High Court. However, the view taken in the judgment of the High Court under appeal that the relevant date for reckoning the period of limitation will be the date of making of the declaration under Section 6, may not be correct. As held in Krishi Utpadan Mandi Samitis case, mere making of declaration is not enough. The making of declaration under Section 6 is complete for the purpose of Proviso to Section 6(1)(i) &ii) when it is published in the official gazette.On facts we have seen that the Notification was lastly published on 6.8.92 in the Official Gazette and declaration under Section 6 was published in the Gazette on 5.8.93 which is well within one year.
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I.T.C. Ltd, Calcutta Vs. The Debts Recovery App.Tribunal | on fraud or misrepresentation. Nor is the case before us one where there is an allegation of presentation of forged or fraudulent documents. 22. Learned counsel for the respondent then relied upon the judgment in Discount Records Ltd. v. Barclays Bank Ltd., 1975(1) All ER 1071. In that case, Megarry, J. referred to the American case in Szten v. J. Henry Schroder Banking Corporation, 1941(31) NYS (2d) 631 decided by the New York Court of Appeals. In that case Shientag, J. distinguished cases of breaches of warranty as to quality from cases of deliberate failure to supply goods and said : "In such a situation, where the sellers fraud has been called to the banks attention before the drafts and documents have been presented for payment, the principle of the independence of the banks obligation under the letter of credit should not be extended to protect the unscrupulous seller". Megarry, J. then distinguished the American case on the ground that "It was important to notice that in the Szten case, the proceedings consisted of a motion to dismiss the formal complaint on the ground that it disclosed no cause of action. That being so, the Court had to assume that the facts stated in the complaint were true." 23. Learned counsel for the respondent Bank contended that the case before us which is concerned with an application under Order 7 Rule 11(a) CPC for rejecting a plaint on the basis of "absence of cause of action from a reading of the plaint" was identical with the Sztein case and hence what Megarry, J. stated in Discount Records Ltd. directly applies. 24. It is true we are also dealing with a question whether the plaint disclosed a cause of action. But here the allegation in the plaint is only one relating to absence of movement of goods by the seller. As pointed in the decided cases and in particular in the U.P. Cooperative Federation Case and other cases decided by this Court and also Courts elsewhere, mere absence of movement has never been, in this branch of law, treated as amounting to fraud. Such non-movement, even if the allegation is to be treated as true, could be for good reasons or for reasons which were not good. But that is not fraud. In Sztejn (See law relating to commercial credit by A.G. Davis (2nd Ed, 1954) (p.160-161 for facts of this case) the position was different. There the complaint was that the sellers who were to ship bristles deliberately placed 50 cases of material on board a steamship, procured a bill of loading from a steamship company and obtained customary invoices. The documents described the goods as bristles as per the letter of credit. In fact, the Indian sellers had filled the 50 crates with Cowhair and other worthless material and rubbish with intent to simulate genuine merchandise and so defraud the plaintiff, the buyers who had instructed the defendants to issue the letter of credit. The sellers then drew a draft under the letter of credit to the order of the Chartered Bank of India, Australia and China and delivered the draft and the fraudulent documents to the Chartered Bank at Cawnpore for collection on account of the sellers. The buyer brought the action which succeeded, to restrain the defendants from paying the draft. The learned Judge said (p. 634): "It must be assumed that the seller has intentionally failed to ship any goods ordered by the buyer. In such a situation, where the sellers fraud has been called to the banks attention before the draft and documents have been presented for payment, the principle of the independence of the banks obligation under the letter of credit should not be extended to protect the unscrupulous seller. It is true that even though the documents are forged or fraudulent, if the issuing bank has already paid the draft before receiving notice of the sellers fraud, it will be protected if it exercised reasonable diligence before making such payment. However, in the instant action Schroder had received notice of Transeas active fraud before it accepted or paid the draft. The Chartered Bank, which stands in no better position than Transea, should not be heard to complain because Schroder is not forced to pay the draft accompanied by documents covering a transaction which it has reasons to believe is fraudulent". It will be noticed that Sztejn was a case where fraudulent documents were presented which simulated shipping of goods which were not only not shipped but on the other hand the seller shipped some rubbish deliberately. Therefore the allegations in the complaint filed by the buyers in that case were based upon the above facts - which as per the legal position in this branch of law - i.e. presentation of fraudulent documents where goods were deliberately not shipped and an attempt was made to pass off rubbish as the goods ordered for - amounted to fraud.25. As stated above, non-movement of goods by the seller could be due to a variety of tenable or untenable reasons, the seller may be in breach of the contract but that by itself does not permit a plaintiff to use the word fraud in the plaint and get over any objections that may be raised by way of filing an application under Order 7 Rule 11 CPC. As pointed out by Krishna Iyer, J. in T. Arivandandams case, the ritual of repeating a word or creation of an illusion in the plaint can certainly be unravelled and exposed by the Court while dealing with an application under Order 7 Rule 11 (a). Inasmuch as the mere allegation of drawal of monies without movement of goods does not amount to a cause of action based on fraud, the Bank cannot take shelter under the words fraud or misrepresentation used in the plaint. 26. Learned counsel for the appellant also contended that this was a case where a letter of credit was without recourse to the invoice value. | 1[ds]It will be noticed that Sztejn was a case where fraudulent documents were presented which simulated shipping of goods which were not only not shipped but on the other hand the seller shipped some rubbish deliberately. Therefore the allegations in the complaint filed by the buyers in that case were based upon the above factsi.e. presentation of fraudulent documents where goods were deliberately not shipped and an attempt was made to pass off rubbish as the goods ordered foramounted to fraud.25. As stated above,of goods by the seller could be due to a variety of tenable or untenable reasons, the seller may be in breach of the contract but that by itself does not permit a plaintiff to use the word fraud in the plaint and get over any objections that may be raised by way of filing an application under Order 7 Rule 11 CPC. As pointed out by Krishna Iyer, J. in T. Arivandandams case, the ritual of repeating a word or creation of an illusion in the plaint can certainly be unravelled and exposed by the Court while dealing with an application under Order 7 Rule 11 (a). Inasmuch as the mere allegation of drawal of monies without movement of goods does not amount to a cause of action based on fraud, the Bank cannot take shelter under the words fraud or misrepresentation used in the plaint. | 1 | 4,890 | 249 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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on fraud or misrepresentation. Nor is the case before us one where there is an allegation of presentation of forged or fraudulent documents. 22. Learned counsel for the respondent then relied upon the judgment in Discount Records Ltd. v. Barclays Bank Ltd., 1975(1) All ER 1071. In that case, Megarry, J. referred to the American case in Szten v. J. Henry Schroder Banking Corporation, 1941(31) NYS (2d) 631 decided by the New York Court of Appeals. In that case Shientag, J. distinguished cases of breaches of warranty as to quality from cases of deliberate failure to supply goods and said : "In such a situation, where the sellers fraud has been called to the banks attention before the drafts and documents have been presented for payment, the principle of the independence of the banks obligation under the letter of credit should not be extended to protect the unscrupulous seller". Megarry, J. then distinguished the American case on the ground that "It was important to notice that in the Szten case, the proceedings consisted of a motion to dismiss the formal complaint on the ground that it disclosed no cause of action. That being so, the Court had to assume that the facts stated in the complaint were true." 23. Learned counsel for the respondent Bank contended that the case before us which is concerned with an application under Order 7 Rule 11(a) CPC for rejecting a plaint on the basis of "absence of cause of action from a reading of the plaint" was identical with the Sztein case and hence what Megarry, J. stated in Discount Records Ltd. directly applies. 24. It is true we are also dealing with a question whether the plaint disclosed a cause of action. But here the allegation in the plaint is only one relating to absence of movement of goods by the seller. As pointed in the decided cases and in particular in the U.P. Cooperative Federation Case and other cases decided by this Court and also Courts elsewhere, mere absence of movement has never been, in this branch of law, treated as amounting to fraud. Such non-movement, even if the allegation is to be treated as true, could be for good reasons or for reasons which were not good. But that is not fraud. In Sztejn (See law relating to commercial credit by A.G. Davis (2nd Ed, 1954) (p.160-161 for facts of this case) the position was different. There the complaint was that the sellers who were to ship bristles deliberately placed 50 cases of material on board a steamship, procured a bill of loading from a steamship company and obtained customary invoices. The documents described the goods as bristles as per the letter of credit. In fact, the Indian sellers had filled the 50 crates with Cowhair and other worthless material and rubbish with intent to simulate genuine merchandise and so defraud the plaintiff, the buyers who had instructed the defendants to issue the letter of credit. The sellers then drew a draft under the letter of credit to the order of the Chartered Bank of India, Australia and China and delivered the draft and the fraudulent documents to the Chartered Bank at Cawnpore for collection on account of the sellers. The buyer brought the action which succeeded, to restrain the defendants from paying the draft. The learned Judge said (p. 634): "It must be assumed that the seller has intentionally failed to ship any goods ordered by the buyer. In such a situation, where the sellers fraud has been called to the banks attention before the draft and documents have been presented for payment, the principle of the independence of the banks obligation under the letter of credit should not be extended to protect the unscrupulous seller. It is true that even though the documents are forged or fraudulent, if the issuing bank has already paid the draft before receiving notice of the sellers fraud, it will be protected if it exercised reasonable diligence before making such payment. However, in the instant action Schroder had received notice of Transeas active fraud before it accepted or paid the draft. The Chartered Bank, which stands in no better position than Transea, should not be heard to complain because Schroder is not forced to pay the draft accompanied by documents covering a transaction which it has reasons to believe is fraudulent". It will be noticed that Sztejn was a case where fraudulent documents were presented which simulated shipping of goods which were not only not shipped but on the other hand the seller shipped some rubbish deliberately. Therefore the allegations in the complaint filed by the buyers in that case were based upon the above facts - which as per the legal position in this branch of law - i.e. presentation of fraudulent documents where goods were deliberately not shipped and an attempt was made to pass off rubbish as the goods ordered for - amounted to fraud.25. As stated above, non-movement of goods by the seller could be due to a variety of tenable or untenable reasons, the seller may be in breach of the contract but that by itself does not permit a plaintiff to use the word fraud in the plaint and get over any objections that may be raised by way of filing an application under Order 7 Rule 11 CPC. As pointed out by Krishna Iyer, J. in T. Arivandandams case, the ritual of repeating a word or creation of an illusion in the plaint can certainly be unravelled and exposed by the Court while dealing with an application under Order 7 Rule 11 (a). Inasmuch as the mere allegation of drawal of monies without movement of goods does not amount to a cause of action based on fraud, the Bank cannot take shelter under the words fraud or misrepresentation used in the plaint. 26. Learned counsel for the appellant also contended that this was a case where a letter of credit was without recourse to the invoice value.
### Response:
1
### Explanation:
It will be noticed that Sztejn was a case where fraudulent documents were presented which simulated shipping of goods which were not only not shipped but on the other hand the seller shipped some rubbish deliberately. Therefore the allegations in the complaint filed by the buyers in that case were based upon the above factsi.e. presentation of fraudulent documents where goods were deliberately not shipped and an attempt was made to pass off rubbish as the goods ordered foramounted to fraud.25. As stated above,of goods by the seller could be due to a variety of tenable or untenable reasons, the seller may be in breach of the contract but that by itself does not permit a plaintiff to use the word fraud in the plaint and get over any objections that may be raised by way of filing an application under Order 7 Rule 11 CPC. As pointed out by Krishna Iyer, J. in T. Arivandandams case, the ritual of repeating a word or creation of an illusion in the plaint can certainly be unravelled and exposed by the Court while dealing with an application under Order 7 Rule 11 (a). Inasmuch as the mere allegation of drawal of monies without movement of goods does not amount to a cause of action based on fraud, the Bank cannot take shelter under the words fraud or misrepresentation used in the plaint.
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Rahuta Union Co-op. Bank Ltd & Another Vs. Union of India & Others | (iii) if at any time, any of the conditions referred to in Sub-section (3) and Sub-section (3A) is not fulfilled: Provided that before cancelling a licence under Clause (ii) or Clause (iii) of this sub-section on the ground tha the banking company has failed to comply with or had failed to fulfil any of the conditions referred to therein, the Reserve Bank, unless it is of opinion that the delay will be prejudicial to the interest of the companys depositors or the public, shall grant to the company on such terms as it may specify, an opportunity of taking the necessary steps for complying with or fulfilling such condition. (5) Any banking company aggrieved by the decision of the Reserve Bank cancelling a licence under this section may, within thirty days from the date on which such decision is communicated to it, appeal to the Central Government. (6) The decision of the Central Government where an appeal has been preferred to it under Sub-section (5) or of the Reserve Bank where no such appeal has been preferred shall be final. 3. SBL applied for a licence. It appears that RBI did not issue any notice informing SBL that the licence could not be granted. Thus SBL continued to carry on banking business by virtue of the proviso of Sub-clause (2). 4. In 1996 RBI pointed out certain operational deficiencies in the working of SBL. SBL was called upon to cure those deficiencies before the licence could be issued to it. Thereafter RBI advised SBL to raise additional capital to the extent of Rs. 50 crores by way of rights preferential issue. RBI made it clear that it would consider issue of a licence to SBL only after the capital was so raised. SBL managed to raise an extent of Rs. 15.18 crores, out of which approximately Rs. 5.80 crores was by means of diversion of SBLs own funds. In February-March, 1997 RBI conducted financial inspection of SBL and found several shortcomings and deficiencies in its functioning. 5. All the petitioners have deposited amounts in SBL. 6. In a special scrutiny conducted in 1998 RBI found that non-performing assets or bad debts were Rs. 58.26 crores, whereas provision was only Rs. 1.52 crores. This meant that SBL had incurred a net loss of Rs. 56.22 crores. Ultimately by a letter dated 15th December, 1998 RBI issued a show-cause notice to the Managing Director Shri A.M. Mustafi under Section 36AA(2) and pending reply prohibited him from acting as the Managing Director. In January, 1999 RBI removed Shri A.M. Mustafi and appointed three additional Directors on SBLs Board. Thereafter special audit was carried out. As a result of the audit the Government of India was informed about the poor state of affairs in SBL. The Government of India was informed that the funds had been siphoned out to the tune of Rs. 57.50 crores. 7. On 8th March, 1999, on the advice of RBI, the Government of India passed on order of Moratorium under Section 45(2) of the Act SBL filed a writ petition in the High Court of Sikkim challenging the order of Moratorium. However, the petition was dismissed on 2nd September, 1999. The special leave petition filed against the order has also been recently dismissed. 8. On 21st December, 1999 the Government of India issued an order notifying a scheme of amalgamation under Section 45(7) of the Act. By this scheme SBl was amalgamated with the Union Bank of India (for short UBI). Under the scheme all the depositors were to be paid on pro-rata basis. It is an admitted position that the depositors are only getting 9.037% of their deposits and they are required to surrender their fixed deposit receipts in return. 9. It was submitted that the scheme is contrary to the legislative mandate of Section 45 of the Act. It was submitted that the scheme was unrealistic and not capable of being implemented, as it has not kept the interest of the depositors in mind. It is submitted that there has been no proper audit of SBL. It is submitted that the values shown in the scheme are not the correct values and the schemes does not reflect the real financial position. It is submitted that the scheme was framed behind the back of the petitioners and no notice had been issued to them. It was also submitted that since no licence had been granted to SBL it could not be considered to be a Bank and therefore RBI had no powers to frame a scheme under Section 45 of the Act. It was further submitted that no serious efforts had been made to recover the debts and that, therefore, the interest of the depositors has not been taken care of. It was submitted that, therefore, this Court should set aside the scheme. 10. It was denied that the provisions of the Act have not been complied with and/or that suggestions of depositors were not considered before finalizing the scheme. It was denied that value shown in the scheme is not correct. It was submitted that all possible efforts have been made to recover amounts. 11. In our view, no rational ground of challenge to the scheme has been made out at all. A full audit has been carried out. The Scheme has taken into consideration all known assets of SBL. Efforts to recover debts have been made. However, even if there were no sufficient efforts of recovery that would not be a ground for setting aside the scheme. Section 22 sets out above permitted SBL to continue to operate as a Banking Company. Therefore, the provisions of the Act applied to it. 12. It must be mentioned that an offer was made to the petitioners that if they felt that there was no proper recovery the debts could be assigned to them in satisfaction of their dues and they could undertake recoveries. Knowing fully well that there was no feasibility of recovery, the offer was not accepted. | 0[ds]It is an admitted position that the depositors are only getting 9.037% of their deposits and they are required to surrender their fixed deposit receipts in return9. It was submitted that the scheme is contrary to the legislative mandate of Section 45 of the Act. It was submitted that the scheme was unrealistic and not capable of being implemented, as it has not kept the interest of the depositors in mind. It is submitted that there has been no proper audit of SBL. It is submitted that the values shown in the scheme are not the correct values and the schemes does not reflect the real financial position. It is submitted that the scheme was framed behind the back of the petitioners and no notice had been issued to them. It was also submitted that since no licence had been granted to SBL it could not be considered to be a Bank and therefore RBI had no powers to frame a scheme under Section 45 of the Act. It was further submitted that no serious efforts had been made to recover the debts and that, therefore, the interest of the depositors has not been taken care of. It was submitted that, therefore, this Court should set aside the scheme10. It was denied that the provisions of the Act have not been complied with and/or that suggestions of depositors were not considered before finalizing the scheme. It was denied that value shown in the scheme is not correct. It was submitted that all possible efforts have been made to recover amounts11. In our view, no rational ground of challenge to the scheme has been made out at all. A full audit has been carried out. The Scheme has taken into consideration all known assets of SBL. Efforts to recover debts have been made. However, even if there were no sufficient efforts of recovery that would not be a ground for setting aside the scheme. Section 22 sets out above permitted SBL to continue to operate as a Banking Company. Therefore, the provisions of the Act applied to it12. It must be mentioned that an offer was made to the petitioners that if they felt that there was no proper recovery the debts could be assigned to them in satisfaction of their dues and they could undertake recoveries. Knowing fully well that there was no feasibility of recovery, the offer was not accepted. | 0 | 1,932 | 436 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
(iii) if at any time, any of the conditions referred to in Sub-section (3) and Sub-section (3A) is not fulfilled: Provided that before cancelling a licence under Clause (ii) or Clause (iii) of this sub-section on the ground tha the banking company has failed to comply with or had failed to fulfil any of the conditions referred to therein, the Reserve Bank, unless it is of opinion that the delay will be prejudicial to the interest of the companys depositors or the public, shall grant to the company on such terms as it may specify, an opportunity of taking the necessary steps for complying with or fulfilling such condition. (5) Any banking company aggrieved by the decision of the Reserve Bank cancelling a licence under this section may, within thirty days from the date on which such decision is communicated to it, appeal to the Central Government. (6) The decision of the Central Government where an appeal has been preferred to it under Sub-section (5) or of the Reserve Bank where no such appeal has been preferred shall be final. 3. SBL applied for a licence. It appears that RBI did not issue any notice informing SBL that the licence could not be granted. Thus SBL continued to carry on banking business by virtue of the proviso of Sub-clause (2). 4. In 1996 RBI pointed out certain operational deficiencies in the working of SBL. SBL was called upon to cure those deficiencies before the licence could be issued to it. Thereafter RBI advised SBL to raise additional capital to the extent of Rs. 50 crores by way of rights preferential issue. RBI made it clear that it would consider issue of a licence to SBL only after the capital was so raised. SBL managed to raise an extent of Rs. 15.18 crores, out of which approximately Rs. 5.80 crores was by means of diversion of SBLs own funds. In February-March, 1997 RBI conducted financial inspection of SBL and found several shortcomings and deficiencies in its functioning. 5. All the petitioners have deposited amounts in SBL. 6. In a special scrutiny conducted in 1998 RBI found that non-performing assets or bad debts were Rs. 58.26 crores, whereas provision was only Rs. 1.52 crores. This meant that SBL had incurred a net loss of Rs. 56.22 crores. Ultimately by a letter dated 15th December, 1998 RBI issued a show-cause notice to the Managing Director Shri A.M. Mustafi under Section 36AA(2) and pending reply prohibited him from acting as the Managing Director. In January, 1999 RBI removed Shri A.M. Mustafi and appointed three additional Directors on SBLs Board. Thereafter special audit was carried out. As a result of the audit the Government of India was informed about the poor state of affairs in SBL. The Government of India was informed that the funds had been siphoned out to the tune of Rs. 57.50 crores. 7. On 8th March, 1999, on the advice of RBI, the Government of India passed on order of Moratorium under Section 45(2) of the Act SBL filed a writ petition in the High Court of Sikkim challenging the order of Moratorium. However, the petition was dismissed on 2nd September, 1999. The special leave petition filed against the order has also been recently dismissed. 8. On 21st December, 1999 the Government of India issued an order notifying a scheme of amalgamation under Section 45(7) of the Act. By this scheme SBl was amalgamated with the Union Bank of India (for short UBI). Under the scheme all the depositors were to be paid on pro-rata basis. It is an admitted position that the depositors are only getting 9.037% of their deposits and they are required to surrender their fixed deposit receipts in return. 9. It was submitted that the scheme is contrary to the legislative mandate of Section 45 of the Act. It was submitted that the scheme was unrealistic and not capable of being implemented, as it has not kept the interest of the depositors in mind. It is submitted that there has been no proper audit of SBL. It is submitted that the values shown in the scheme are not the correct values and the schemes does not reflect the real financial position. It is submitted that the scheme was framed behind the back of the petitioners and no notice had been issued to them. It was also submitted that since no licence had been granted to SBL it could not be considered to be a Bank and therefore RBI had no powers to frame a scheme under Section 45 of the Act. It was further submitted that no serious efforts had been made to recover the debts and that, therefore, the interest of the depositors has not been taken care of. It was submitted that, therefore, this Court should set aside the scheme. 10. It was denied that the provisions of the Act have not been complied with and/or that suggestions of depositors were not considered before finalizing the scheme. It was denied that value shown in the scheme is not correct. It was submitted that all possible efforts have been made to recover amounts. 11. In our view, no rational ground of challenge to the scheme has been made out at all. A full audit has been carried out. The Scheme has taken into consideration all known assets of SBL. Efforts to recover debts have been made. However, even if there were no sufficient efforts of recovery that would not be a ground for setting aside the scheme. Section 22 sets out above permitted SBL to continue to operate as a Banking Company. Therefore, the provisions of the Act applied to it. 12. It must be mentioned that an offer was made to the petitioners that if they felt that there was no proper recovery the debts could be assigned to them in satisfaction of their dues and they could undertake recoveries. Knowing fully well that there was no feasibility of recovery, the offer was not accepted.
### Response:
0
### Explanation:
It is an admitted position that the depositors are only getting 9.037% of their deposits and they are required to surrender their fixed deposit receipts in return9. It was submitted that the scheme is contrary to the legislative mandate of Section 45 of the Act. It was submitted that the scheme was unrealistic and not capable of being implemented, as it has not kept the interest of the depositors in mind. It is submitted that there has been no proper audit of SBL. It is submitted that the values shown in the scheme are not the correct values and the schemes does not reflect the real financial position. It is submitted that the scheme was framed behind the back of the petitioners and no notice had been issued to them. It was also submitted that since no licence had been granted to SBL it could not be considered to be a Bank and therefore RBI had no powers to frame a scheme under Section 45 of the Act. It was further submitted that no serious efforts had been made to recover the debts and that, therefore, the interest of the depositors has not been taken care of. It was submitted that, therefore, this Court should set aside the scheme10. It was denied that the provisions of the Act have not been complied with and/or that suggestions of depositors were not considered before finalizing the scheme. It was denied that value shown in the scheme is not correct. It was submitted that all possible efforts have been made to recover amounts11. In our view, no rational ground of challenge to the scheme has been made out at all. A full audit has been carried out. The Scheme has taken into consideration all known assets of SBL. Efforts to recover debts have been made. However, even if there were no sufficient efforts of recovery that would not be a ground for setting aside the scheme. Section 22 sets out above permitted SBL to continue to operate as a Banking Company. Therefore, the provisions of the Act applied to it12. It must be mentioned that an offer was made to the petitioners that if they felt that there was no proper recovery the debts could be assigned to them in satisfaction of their dues and they could undertake recoveries. Knowing fully well that there was no feasibility of recovery, the offer was not accepted.
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Babu & Another Vs. State of M.P | 1. The appellants having been convicted under Section 302 of the Indian Penal Code and sentenced for imprisonment for life have preferred this appeal on grant of leave by this Court. 2. According to the prosecution, on 22nd December, 2010, the Station House Officer of Police Station, Alot received telephonic information that a dead body of a young boy is lying near Gharola Temple. The aforesaid information was recorded in the Station Diary and the Station House Officer along with the police force reached the place of occurrence. There they found the dead body of a boy aged between 13-14 years. The inquest report was prepared and the dead body was sent for post-mortem examination. Dr.B.L.Chaturvedi (P.W.10) conducted the post-mortem examination and found that the deceased died of strangulation.3. During the course of investigation, it transpired that the deceased was last seen in the company of the appellants at a liquor shop and a jilebi shop and thereafter he was not seen alive. The appellants were arrested and their disclosure led to the recovery of the pajama of the deceased and underwears of the accused which were seized and sent to the Forensic Science Laboratory for examination. According to the report (Exhibit- 21), pajama of the deceased and underwears of the appellants contained human blood and spermatozoa. The police, after usual investigation submitted charge-sheet under Sections 302 and 377 of the Indian Penal Code and the appellants were ultimately committed to the Court of Sessions. The appellants denied to have committed any offence and claimed to be tried. There is no eye witness to the occurrence and the prosecution sought appellants conviction relying on the circumstantial evidence. It mainly relied upon the evidence of P.W.1 Bheru, P.W.2 Jujhar and P.W.5 Madan, who had seen the deceased wearing pajama in the company of the appellants in the night before the dead body was recovered. It also relied on the evidence of P.W.4 Md.Khan, who had proved the memorandum leading to the recovery of the pajama and the underwears of the appellants and the Forensic Science Laboratory report.4. The trial Court relying upon the evidence of the aforesaid witnesses and recovery of the pajama of the deceased and the underwears of the appellants and Forensic Science Laboratory report came to the conclusion that the chain of circumstances is complete and accordingly held the appellants guilty under Section 302 of the Indian Penal Code and sentenced them to undergo imprisonment for life but acquitted them of the charge under Section 377 of the Indian Penal Code.5. Appeal preferred by the appellants has been dismissed by the High Court. 6. Ms.Binu Tamta, learned Counsel appearing on behalf of the appellants submits that to bring home the charge on the basis of circumstantial evidence, the prosecution has to establish that the circumstances proved complete the chain and once it is broken, the appellants are entitled to be given the benefit of doubt. She points out that the deceased was seen in the company of the appellants in the night and his dead body was found in the morning and in between somebody else might have killed the deceased. Mr.S.K.Dubey, learned Senior Counsel appearing on behalf of the respondent, however, supports the judgment of conviction and sentence. 7. We have considered the rival submissions and we do not find any substance in the submission of Ms.Binu Tamta. P.W.1 Bheru had stated in his evidence that he had seen the deceased alongwith the appellants in the evening at 7.30 P.M. at the Government Liquor Shop. According to this witness, the deceased was wearing a pajama and all of them went towards the Government School and his dead body was found on the next morning lying by the side of the culvert near Shankarji Temple. P.W.2 Jujhar is the owner of a hotel and according to his evidence, appellants along with a boy wearing pajama purchased 200 gms of jalebi between 8.00-8.30 P.M. on the previous evening, when the dead body was recovered. P.W.5 Madan is another witness who had seen the deceased in the evening. According to this witness, he along with his guests were at the Government Liquor Shop at 8.00 P.M. where he saw the appellants and a boy at about 8.00 P.M. there, whose dead body was found in the next morning. All these witnesses are independent witnesses and there is nothing in their cross-examination to discredit their evidence. Thus the prosecution has proved beyond reasonable doubt that in the previous night the deceased was in the company of the appellants. 8. The deceased died a homicidal death is evident from the evidence of Dr.B.L.Chaturvedi (P.W.10), who has stated that the deceased died due to strangulation. Deceased died a homicidal death, in fact, has not been questioned at any stage.9. P.W.5 Md.Khan is a witness to the seizure memo (Exhibit 6) and according to his evidence, appellant Babu disclosed that he had concealed the pajama beneath sand at Bagar. This information led to the recovery of pajama. He is also a witness to the seizures of underwears of the appellants. The underwears of the appellants and pajama were seized and sent to Forensic Science Laboratory, which found human blood and sperms on these articles. Appellants did not explain presence of human blood and sperms on these wearing apparels. We are of the opinion that the circumstances proved by the prosecution lead to one and the only conclusion that it is the appellants who had committed the crime. We are of the opinion that the judgment of conviction and sentence passed by the Courts below is in accordance with law and do not call for interference in this appeal. 10. | 0[ds]The deceased died a homicidal death is evident from the evidence of Dr.B.L.Chaturvedi (P.W.10), who has stated that the deceased died due to strangulation. Deceased died a homicidal death, in fact, has not been questioned at any stage.9. P.W.5 Md.Khan is a witness to the seizure memo (Exhibit 6) and according to his evidence, appellant Babu disclosed that he had concealed the pajama beneath sand at Bagar. This information led to the recovery of pajama. He is also a witness to the seizures of underwears of the appellants. The underwears of the appellants and pajama were seized and sent to Forensic Science Laboratory, which found human blood and sperms on these articles. Appellants did not explain presence of human blood and sperms on these wearing apparels. We are of the opinion that the circumstances proved by the prosecution lead to one and the only conclusion that it is the appellants who had committed the crime. We are of the opinion that the judgment of conviction and sentence passed by the Courts below is in accordance with law and do not call for interference in this appeal. | 0 | 1,021 | 208 | ### 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:
1. The appellants having been convicted under Section 302 of the Indian Penal Code and sentenced for imprisonment for life have preferred this appeal on grant of leave by this Court. 2. According to the prosecution, on 22nd December, 2010, the Station House Officer of Police Station, Alot received telephonic information that a dead body of a young boy is lying near Gharola Temple. The aforesaid information was recorded in the Station Diary and the Station House Officer along with the police force reached the place of occurrence. There they found the dead body of a boy aged between 13-14 years. The inquest report was prepared and the dead body was sent for post-mortem examination. Dr.B.L.Chaturvedi (P.W.10) conducted the post-mortem examination and found that the deceased died of strangulation.3. During the course of investigation, it transpired that the deceased was last seen in the company of the appellants at a liquor shop and a jilebi shop and thereafter he was not seen alive. The appellants were arrested and their disclosure led to the recovery of the pajama of the deceased and underwears of the accused which were seized and sent to the Forensic Science Laboratory for examination. According to the report (Exhibit- 21), pajama of the deceased and underwears of the appellants contained human blood and spermatozoa. The police, after usual investigation submitted charge-sheet under Sections 302 and 377 of the Indian Penal Code and the appellants were ultimately committed to the Court of Sessions. The appellants denied to have committed any offence and claimed to be tried. There is no eye witness to the occurrence and the prosecution sought appellants conviction relying on the circumstantial evidence. It mainly relied upon the evidence of P.W.1 Bheru, P.W.2 Jujhar and P.W.5 Madan, who had seen the deceased wearing pajama in the company of the appellants in the night before the dead body was recovered. It also relied on the evidence of P.W.4 Md.Khan, who had proved the memorandum leading to the recovery of the pajama and the underwears of the appellants and the Forensic Science Laboratory report.4. The trial Court relying upon the evidence of the aforesaid witnesses and recovery of the pajama of the deceased and the underwears of the appellants and Forensic Science Laboratory report came to the conclusion that the chain of circumstances is complete and accordingly held the appellants guilty under Section 302 of the Indian Penal Code and sentenced them to undergo imprisonment for life but acquitted them of the charge under Section 377 of the Indian Penal Code.5. Appeal preferred by the appellants has been dismissed by the High Court. 6. Ms.Binu Tamta, learned Counsel appearing on behalf of the appellants submits that to bring home the charge on the basis of circumstantial evidence, the prosecution has to establish that the circumstances proved complete the chain and once it is broken, the appellants are entitled to be given the benefit of doubt. She points out that the deceased was seen in the company of the appellants in the night and his dead body was found in the morning and in between somebody else might have killed the deceased. Mr.S.K.Dubey, learned Senior Counsel appearing on behalf of the respondent, however, supports the judgment of conviction and sentence. 7. We have considered the rival submissions and we do not find any substance in the submission of Ms.Binu Tamta. P.W.1 Bheru had stated in his evidence that he had seen the deceased alongwith the appellants in the evening at 7.30 P.M. at the Government Liquor Shop. According to this witness, the deceased was wearing a pajama and all of them went towards the Government School and his dead body was found on the next morning lying by the side of the culvert near Shankarji Temple. P.W.2 Jujhar is the owner of a hotel and according to his evidence, appellants along with a boy wearing pajama purchased 200 gms of jalebi between 8.00-8.30 P.M. on the previous evening, when the dead body was recovered. P.W.5 Madan is another witness who had seen the deceased in the evening. According to this witness, he along with his guests were at the Government Liquor Shop at 8.00 P.M. where he saw the appellants and a boy at about 8.00 P.M. there, whose dead body was found in the next morning. All these witnesses are independent witnesses and there is nothing in their cross-examination to discredit their evidence. Thus the prosecution has proved beyond reasonable doubt that in the previous night the deceased was in the company of the appellants. 8. The deceased died a homicidal death is evident from the evidence of Dr.B.L.Chaturvedi (P.W.10), who has stated that the deceased died due to strangulation. Deceased died a homicidal death, in fact, has not been questioned at any stage.9. P.W.5 Md.Khan is a witness to the seizure memo (Exhibit 6) and according to his evidence, appellant Babu disclosed that he had concealed the pajama beneath sand at Bagar. This information led to the recovery of pajama. He is also a witness to the seizures of underwears of the appellants. The underwears of the appellants and pajama were seized and sent to Forensic Science Laboratory, which found human blood and sperms on these articles. Appellants did not explain presence of human blood and sperms on these wearing apparels. We are of the opinion that the circumstances proved by the prosecution lead to one and the only conclusion that it is the appellants who had committed the crime. We are of the opinion that the judgment of conviction and sentence passed by the Courts below is in accordance with law and do not call for interference in this appeal. 10.
### Response:
0
### Explanation:
The deceased died a homicidal death is evident from the evidence of Dr.B.L.Chaturvedi (P.W.10), who has stated that the deceased died due to strangulation. Deceased died a homicidal death, in fact, has not been questioned at any stage.9. P.W.5 Md.Khan is a witness to the seizure memo (Exhibit 6) and according to his evidence, appellant Babu disclosed that he had concealed the pajama beneath sand at Bagar. This information led to the recovery of pajama. He is also a witness to the seizures of underwears of the appellants. The underwears of the appellants and pajama were seized and sent to Forensic Science Laboratory, which found human blood and sperms on these articles. Appellants did not explain presence of human blood and sperms on these wearing apparels. We are of the opinion that the circumstances proved by the prosecution lead to one and the only conclusion that it is the appellants who had committed the crime. We are of the opinion that the judgment of conviction and sentence passed by the Courts below is in accordance with law and do not call for interference in this appeal.
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Bareilly Development Authority & Anr Vs. Ajai Pal Singh & Ors | property. This is not only the case of the applicants of MIG scheme but also of the other applicants falling under the other categories i.e. HIG, LIG and EWS. So it cannot be said that there was a mis-statement or incorrect statement or any fraudulent concealment in the information supplied in the brochure published by the BDA on the strength of which all the applicants falling under the various categories applied and got their names registered. In such a circumstances the respondents cannot be heard to say that the BDA has arbitrarily and unreasonably changed the terms and conditions of the brochure to the prejudice of the respondents. 18. More so, the respondents barring respondents 13, 17, 18 and 20 after having given their written consent accepting the changed and varied terms and conditions as shown in the letter dated January 19/20, 1984 are not justified in contending that the BDA has gone back on its original terms and conditions and has substituted new conditions to their detriment. It is quite ununderstandable that the persons like the first respondent who is highly educated, occupying the post of the Principal of a College and who has accepted the changed terms and conditions by his letter is making these allegations against the BDA. 19. The respondents were under no obligation to seek allotment of houses/flats even after they had registered themselves. Notwithstanding, of houses/flats even after they had registered themselves as applicants, only after fully understanding the terms and conditions of the brochure inclusive of clauses 12 and 13 and Notes 1 and 2 of the General Information Table which we have reproduced above, they are now trying to obtain the houses/flats at the price indicated in the brochure at the initial stage conveniently ignoring the other express conditions by and under which the BDA has reserved its right to change the terms and conditions as and when felt necessary, evidently depending upon the escalation of the prices. One should not lose sight of the fact that the BDA did not compel anyone of the applicants to purchase the flat at the rates subsequently fixed by it and pay the increased monthly instalments. On the contrary, the opinion was left over only to the allottees. In fact, the respondents in Civil Appeal No. 2809 of 1986 except the four abovementioned have unconditionally accepted the changed terms and conditions. 20. Thus the factual position in this case clearly and unambiguously reveals that the respondents after voluntarily accepting the conditions imposed by the BDA have entered into the realm of concluded contract pure and simple with the BDA and hence the respondents can only claim the right conferred upon them by the said contract and are bound by the terms of the contract unless some statute steps in and confers some special statutory obligations on the part of the BDA in the contractual field. In the case before us, the contract between the respondents and the BDA does not contain any statutory terms and/or conditions. When the factual position is so, the High Court placing reliance on the decision in Ramana Dayaram Shetty case ((1979) 3 SCC 489 : AIR 1979 SC 1628 ) has erroneously heldIt has not been disputed that the contesting opposite party is included within the term other authority mentioned under Article 12 of the Constitution. Therefore, the contesting opposite parties cannot be permitted to act arbitrarily with the principle which meets the test of reason and relevance. Where an authority appears acting unreasonably this Court is not powerless and a writ of mandamus can be issued for performing its duty free from arbitrariness or unreasonableness. 21. This finding, in our view, is not correct in the light of the facts and circumstances of this case because in Ramana Dayaram Shetty case ((1979) 3 SCC 489 : AIR 1979 SC 1928) there was no concluded contract as in this case. Even conceding that the BDA has the trappings of a State or would be comprehended in other authority for the purpose of Article 12 of the Constitution, while determining price of the houses/flats constructed by it and the rate of monthly instalments to be paid, the authority or its agent after entering into the field of ordinary contract acts purely in its executive capacity. Thereafter the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines the rights and obligations of the parties inter se. In this sphere, they can only claim right conferred upon them by the contract in the absence of any statutory obligations on the part of the authority (i.e. BDA in this case) in the said contractual field. 22. There is a line of decisions where the contract entered into between the State and the persons aggrieved is non-statutory and purely contractual and the right are governed only by the terms of the contract, no writ or order can be issued under Article 226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple - Radhakrishna Agarwal v. State of Bihar ((1977) 3 SCC 457 : (1977) 3 SCR 249 ), Premji Bhai Parmar v. Delhi Development Authority ((1980) 2 SCC 129 : (1980) 2 SCR 704 ) and DFO v. Biswanath Tea Company Ltd. ((1981) 3 SCC 238 : (1981) 3 SCR 662). 23. In view of the authoritative judicial pronouncements of this Court in the series of cases dealing with the scope of interference of a High Court while exercising its writ jurisdiction under Article 226 of the Constitution of India in cases of non-statutory concluded contracts like the one in hand, we are constrained to hold that the High Court in the present case has gone wrong in its finding that there is arbitrariness and unreasonableness on the part of the appellants herein in increasing the cost of the houses/flats and the rate of monthly instalments and giving directions in the writ petitions as prayed for. | 1[ds]17. Only on the basis of the written acceptance, the names of the first respondent was included in the draw and he was successful in getting the allotment of House No. 37 in MIG type which fact is clearly borne out by the letter from the second respondent (Annexure F). In this connection, it is worthwhile to note that the first respondent, Shri Ajay Pal Singh is the Principal of Shri Guru Govind Singh Inter College and his educational qualifications are M.A. (Eco. & Hist.), B.Sc., B.Ed., LL.B. From the above, it is clear that all the respondents who have sent their applications for registration with initial payment only after having fully understood the terms and conditions of the brochure inclusive of the clauses 12 and 13 and Notes 1 and 2 of the General Information Table as per which the BDA has reserved its right to change, enhance or amend any of the terms and/or conditions as the when felt necessary, and also the right to relax any of the conditions at its discretion, and that the cost shown in the column 4 of the brochure was only estimated cost subject to increase or decrease according to the rise or fall in the price at the time of completion of the property. This is not only the case of the applicants of MIG scheme but also of the other applicants falling under the other categories i.e. HIG, LIG and EWS. So it cannot be said that there was a mis-statement or incorrect statement or any fraudulent concealment in the information supplied in the brochure published by the BDA on the strength of which all the applicants falling under the various categories applied and got their names registered. In such a circumstances the respondents cannot be heard to say that the BDA has arbitrarily and unreasonably changed the terms and conditions of the brochure to the prejudice of theMore so, the respondents barring respondents 13, 17, 18 and 20 after having given their written consent accepting the changed and varied terms and conditions as shown in the letter dated January 19/20, 1984 are not justified in contending that the BDA has gone back on its original terms and conditions and has substituted new conditions to their detriment. It is quite ununderstandable that the persons like the first respondent who is highly educated, occupying the post of the Principal of a College and who has accepted the changed terms and conditions by his letter is making these allegations against theThe respondents were under no obligation to seek allotment of houses/flats even after they had registered themselves. Notwithstanding, of houses/flats even after they had registered themselves as applicants, only after fully understanding the terms and conditions of the brochure inclusive of clauses 12 and 13 and Notes 1 and 2 of the General Information Table which we have reproduced above, they are now trying to obtain the houses/flats at the price indicated in the brochure at the initial stage conveniently ignoring the other express conditions by and under which the BDA has reserved its right to change the terms and conditions as and when felt necessary, evidently depending upon the escalation of the prices. One should not lose sight of the fact that the BDA did not compel anyone of the applicants to purchase the flat at the rates subsequently fixed by it and pay the increased monthly instalments. On the contrary, the opinion was left over only to the allottees. In fact, the respondents in Civil Appeal No. 2809 of 1986 except the four abovementioned have unconditionally accepted the changed terms andThus the factual position in this case clearly and unambiguously reveals that the respondents after voluntarily accepting the conditions imposed by the BDA have entered into the realm of concluded contract pure and simple with the BDA and hence the respondents can only claim the right conferred upon them by the said contract and are bound by the terms of the contract unless some statute steps in and confers some special statutory obligations on the part of the BDA in the contractual field. In the case before us, the contract between the respondents and the BDA does not contain any statutory terms and/or conditions. When the factual position is so, the High Court placing reliance on the decision in Ramana Dayaram Shetty case ((1979) 3 SCC 489 : AIR 1979 SC 1628 ) has erroneously heldIt has not been disputed that the contesting opposite party is included within the term other authority mentioned under Article 12 of the Constitution. Therefore, the contesting opposite parties cannot be permitted to act arbitrarily with the principle which meets the test of reason and relevance. Where an authority appears acting unreasonably this Court is not powerless and a writ of mandamus can be issued for performing its duty free from arbitrariness orThis finding, in our view, is not correct in the light of the facts and circumstances of this case because in Ramana Dayaram Shetty case ((1979) 3 SCC 489 : AIR 1979 SC 1928) there was no concluded contract as in this case. Even conceding that the BDA has the trappings of a State or would be comprehended in other authority for the purpose of Article 12 of the Constitution, while determining price of the houses/flats constructed by it and the rate of monthly instalments to be paid, the authority or its agent after entering into the field of ordinary contract acts purely in its executive capacity. Thereafter the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines the rights and obligations of the parties inter se. In this sphere, they can only claim right conferred upon them by the contract in the absence of any statutory obligations on the part of the authority (i.e. BDA in this case) in the said contractualThere is a line of decisions where the contract entered into between the State and the persons aggrieved is non-statutory and purely contractual and the right are governed only by the terms of the contract, no writ or order can be issued under Article 226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple - Radhakrishna Agarwal v. State of Bihar ((1977) 3 SCC 457 : (1977) 3 SCR 249 ), Premji Bhai Parmar v. Delhi Development Authority ((1980) 2 SCC 129 : (1980) 2 SCR 704 ) and DFO v. Biswanath Tea Company Ltd. ((1981) 3 SCC 238 : (1981) 3 SCRIn view of the authoritative judicial pronouncements of this Court in the series of cases dealing with the scope of interference of a High Court while exercising its writ jurisdiction under Article 226 of the Constitution of India in cases of non-statutory concluded contracts like the one in hand, we are constrained to hold that the High Court in the present case has gone wrong in its finding that there is arbitrariness and unreasonableness on the part of the appellants herein in increasing the cost of the houses/flats and the rate of monthly instalments and giving directions in the writ petitions as prayed for | 1 | 3,906 | 1,287 | ### 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:
property. This is not only the case of the applicants of MIG scheme but also of the other applicants falling under the other categories i.e. HIG, LIG and EWS. So it cannot be said that there was a mis-statement or incorrect statement or any fraudulent concealment in the information supplied in the brochure published by the BDA on the strength of which all the applicants falling under the various categories applied and got their names registered. In such a circumstances the respondents cannot be heard to say that the BDA has arbitrarily and unreasonably changed the terms and conditions of the brochure to the prejudice of the respondents. 18. More so, the respondents barring respondents 13, 17, 18 and 20 after having given their written consent accepting the changed and varied terms and conditions as shown in the letter dated January 19/20, 1984 are not justified in contending that the BDA has gone back on its original terms and conditions and has substituted new conditions to their detriment. It is quite ununderstandable that the persons like the first respondent who is highly educated, occupying the post of the Principal of a College and who has accepted the changed terms and conditions by his letter is making these allegations against the BDA. 19. The respondents were under no obligation to seek allotment of houses/flats even after they had registered themselves. Notwithstanding, of houses/flats even after they had registered themselves as applicants, only after fully understanding the terms and conditions of the brochure inclusive of clauses 12 and 13 and Notes 1 and 2 of the General Information Table which we have reproduced above, they are now trying to obtain the houses/flats at the price indicated in the brochure at the initial stage conveniently ignoring the other express conditions by and under which the BDA has reserved its right to change the terms and conditions as and when felt necessary, evidently depending upon the escalation of the prices. One should not lose sight of the fact that the BDA did not compel anyone of the applicants to purchase the flat at the rates subsequently fixed by it and pay the increased monthly instalments. On the contrary, the opinion was left over only to the allottees. In fact, the respondents in Civil Appeal No. 2809 of 1986 except the four abovementioned have unconditionally accepted the changed terms and conditions. 20. Thus the factual position in this case clearly and unambiguously reveals that the respondents after voluntarily accepting the conditions imposed by the BDA have entered into the realm of concluded contract pure and simple with the BDA and hence the respondents can only claim the right conferred upon them by the said contract and are bound by the terms of the contract unless some statute steps in and confers some special statutory obligations on the part of the BDA in the contractual field. In the case before us, the contract between the respondents and the BDA does not contain any statutory terms and/or conditions. When the factual position is so, the High Court placing reliance on the decision in Ramana Dayaram Shetty case ((1979) 3 SCC 489 : AIR 1979 SC 1628 ) has erroneously heldIt has not been disputed that the contesting opposite party is included within the term other authority mentioned under Article 12 of the Constitution. Therefore, the contesting opposite parties cannot be permitted to act arbitrarily with the principle which meets the test of reason and relevance. Where an authority appears acting unreasonably this Court is not powerless and a writ of mandamus can be issued for performing its duty free from arbitrariness or unreasonableness. 21. This finding, in our view, is not correct in the light of the facts and circumstances of this case because in Ramana Dayaram Shetty case ((1979) 3 SCC 489 : AIR 1979 SC 1928) there was no concluded contract as in this case. Even conceding that the BDA has the trappings of a State or would be comprehended in other authority for the purpose of Article 12 of the Constitution, while determining price of the houses/flats constructed by it and the rate of monthly instalments to be paid, the authority or its agent after entering into the field of ordinary contract acts purely in its executive capacity. Thereafter the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines the rights and obligations of the parties inter se. In this sphere, they can only claim right conferred upon them by the contract in the absence of any statutory obligations on the part of the authority (i.e. BDA in this case) in the said contractual field. 22. There is a line of decisions where the contract entered into between the State and the persons aggrieved is non-statutory and purely contractual and the right are governed only by the terms of the contract, no writ or order can be issued under Article 226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple - Radhakrishna Agarwal v. State of Bihar ((1977) 3 SCC 457 : (1977) 3 SCR 249 ), Premji Bhai Parmar v. Delhi Development Authority ((1980) 2 SCC 129 : (1980) 2 SCR 704 ) and DFO v. Biswanath Tea Company Ltd. ((1981) 3 SCC 238 : (1981) 3 SCR 662). 23. In view of the authoritative judicial pronouncements of this Court in the series of cases dealing with the scope of interference of a High Court while exercising its writ jurisdiction under Article 226 of the Constitution of India in cases of non-statutory concluded contracts like the one in hand, we are constrained to hold that the High Court in the present case has gone wrong in its finding that there is arbitrariness and unreasonableness on the part of the appellants herein in increasing the cost of the houses/flats and the rate of monthly instalments and giving directions in the writ petitions as prayed for.
### Response:
1
### Explanation:
or decrease according to the rise or fall in the price at the time of completion of the property. This is not only the case of the applicants of MIG scheme but also of the other applicants falling under the other categories i.e. HIG, LIG and EWS. So it cannot be said that there was a mis-statement or incorrect statement or any fraudulent concealment in the information supplied in the brochure published by the BDA on the strength of which all the applicants falling under the various categories applied and got their names registered. In such a circumstances the respondents cannot be heard to say that the BDA has arbitrarily and unreasonably changed the terms and conditions of the brochure to the prejudice of theMore so, the respondents barring respondents 13, 17, 18 and 20 after having given their written consent accepting the changed and varied terms and conditions as shown in the letter dated January 19/20, 1984 are not justified in contending that the BDA has gone back on its original terms and conditions and has substituted new conditions to their detriment. It is quite ununderstandable that the persons like the first respondent who is highly educated, occupying the post of the Principal of a College and who has accepted the changed terms and conditions by his letter is making these allegations against theThe respondents were under no obligation to seek allotment of houses/flats even after they had registered themselves. Notwithstanding, of houses/flats even after they had registered themselves as applicants, only after fully understanding the terms and conditions of the brochure inclusive of clauses 12 and 13 and Notes 1 and 2 of the General Information Table which we have reproduced above, they are now trying to obtain the houses/flats at the price indicated in the brochure at the initial stage conveniently ignoring the other express conditions by and under which the BDA has reserved its right to change the terms and conditions as and when felt necessary, evidently depending upon the escalation of the prices. One should not lose sight of the fact that the BDA did not compel anyone of the applicants to purchase the flat at the rates subsequently fixed by it and pay the increased monthly instalments. On the contrary, the opinion was left over only to the allottees. In fact, the respondents in Civil Appeal No. 2809 of 1986 except the four abovementioned have unconditionally accepted the changed terms andThus the factual position in this case clearly and unambiguously reveals that the respondents after voluntarily accepting the conditions imposed by the BDA have entered into the realm of concluded contract pure and simple with the BDA and hence the respondents can only claim the right conferred upon them by the said contract and are bound by the terms of the contract unless some statute steps in and confers some special statutory obligations on the part of the BDA in the contractual field. In the case before us, the contract between the respondents and the BDA does not contain any statutory terms and/or conditions. When the factual position is so, the High Court placing reliance on the decision in Ramana Dayaram Shetty case ((1979) 3 SCC 489 : AIR 1979 SC 1628 ) has erroneously heldIt has not been disputed that the contesting opposite party is included within the term other authority mentioned under Article 12 of the Constitution. Therefore, the contesting opposite parties cannot be permitted to act arbitrarily with the principle which meets the test of reason and relevance. Where an authority appears acting unreasonably this Court is not powerless and a writ of mandamus can be issued for performing its duty free from arbitrariness orThis finding, in our view, is not correct in the light of the facts and circumstances of this case because in Ramana Dayaram Shetty case ((1979) 3 SCC 489 : AIR 1979 SC 1928) there was no concluded contract as in this case. Even conceding that the BDA has the trappings of a State or would be comprehended in other authority for the purpose of Article 12 of the Constitution, while determining price of the houses/flats constructed by it and the rate of monthly instalments to be paid, the authority or its agent after entering into the field of ordinary contract acts purely in its executive capacity. Thereafter the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines the rights and obligations of the parties inter se. In this sphere, they can only claim right conferred upon them by the contract in the absence of any statutory obligations on the part of the authority (i.e. BDA in this case) in the said contractualThere is a line of decisions where the contract entered into between the State and the persons aggrieved is non-statutory and purely contractual and the right are governed only by the terms of the contract, no writ or order can be issued under Article 226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple - Radhakrishna Agarwal v. State of Bihar ((1977) 3 SCC 457 : (1977) 3 SCR 249 ), Premji Bhai Parmar v. Delhi Development Authority ((1980) 2 SCC 129 : (1980) 2 SCR 704 ) and DFO v. Biswanath Tea Company Ltd. ((1981) 3 SCC 238 : (1981) 3 SCRIn view of the authoritative judicial pronouncements of this Court in the series of cases dealing with the scope of interference of a High Court while exercising its writ jurisdiction under Article 226 of the Constitution of India in cases of non-statutory concluded contracts like the one in hand, we are constrained to hold that the High Court in the present case has gone wrong in its finding that there is arbitrariness and unreasonableness on the part of the appellants herein in increasing the cost of the houses/flats and the rate of monthly instalments and giving directions in the writ petitions as prayed for
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Sunder Lal Vs. Paramsukhdas | a person on whom the title of the person interested has devolved be granted, there is no reason why the right to claim a reference of a dispute about the person entitled to compensation may not be exercised by the person on whom the title has devolved since the date of the award.The scheme of the Land Acquisition Act is that all disputes about the quantum of compensation must be decided by resort to the procedure prescribed by the Act; it is also intended that disputes about the rights of owners to compensation being ancillary to the principal dispute should be decided by the Court to which power is entrusted. Jurisdiction of the Court in this behalf is not restricted to cases of apportionment, but extends to adjudication of disputes as to the person who are entitled to receive compensation, and there is nothing in Sec. 30which excludes a reference to the Court of a dispute raised by a person on whom the title of the owner of land has, since the award, devolved."14. In Gola Khan v. Bholanath Marick, (1910) 12 Cal LJ 545 an attaching creditor was directed to be made a party to the reference under the Land Acquisition Act, before the Civil Court, Mookerjee, J., observed :"The petitioner was entitled to be added as a party not under Rule 10, but on the ground that he was a person interested in the subject-matter of the litigation and that no order ought to have been made for its disposal without any opportunity afforded to him to establish his claim."15. In Siva Pratapa Bhattadu v. A. E. L. Mission, AIR 1926 Mad 307 an attaching creditor was held to be a person interested within Section 3 (b) of the Act.16. Mr. Desai relies on AIR 1956 Cal 263 but in that case the point decided by the Court was different. It was held there that if a party to a land acquisition proceeding before the Collector had not obtained a reference under Section 18 of the Act, its representative could not do indirectly what they did not do directly, i. e. they could not be added a party in a reference pending at the instance of other parties in order that the nil award against the party might be reversed and in order that they might be awarded a share of the compensation money. Here no such point has been raised. It has not been urged before us that Paramsukhdas was a party before the Collector and that having not applied for a reference under Section 18 he is now debarred from being added as a party.17. The case of Govinda Kumar Roy v. Debendra Kumar, (1908) l2 Cal WN 98 was also decided on the same lines. Similar view was reiterated in Mahammad Safi v. Haran Chandra, (1908) 12 Cal WN 985. Both these cases had followed (1907) ILR 34 Cal 451 . Maclean, C. J., observed as follows in (1907) ILR 34 Cal 451 :"If we read that Section in connection with Section 20 and Section 18, I think it is impossible to avoid the conclusion that the Legislature intended that all that the Court could deal with was objection which had been referred to it; and this seems to be a view consistent with common sense and with the ordinary method of procedure in civil cases. The zemindar here could, if he liked, have raised the objection as to the whole compensation for the trees being given to the tenants, but he did not do so. He must, therefore, be taken to have accepted the award in that respect; and it would be little less than dangerous if we were to hold that that the Judge to whom only one objection was referred could go into all sorts of questions and objections which had not been referred to him.".These three cases are distinguishable inasmuch as they are dealing with the cases of persons who having a right to seek a reference failed to claim that reference but sought to raise the point in a reference made at the instance of another party.18. The case of Karuna Sindhu Dhar v. Panna Lal Paramanik, (1961) 115 Cal WN 802 also does not assist the appellant. The High Court held in that case that as Raj mohan never claimed the entire compensation money before the Collector, the Land Acquisition Judge was not entitled to vary the awards by a declaration that Rajmohan alone was entitled to get the compensation.19. It seems to us that Paramsukhdas was clearly a person interested in the objections which were pending before the Court in the references made to it and that he was also a person whose interest would be affected by the objections, within Section 21 He was accordingly entitled to be made a party. In the result we uphold the order made by the High Court in this respect.20. Mr. Desai says that at any rate direction should be given that Paramsukhdas should not be entitled to challenge the compromise entered into between Sunderlal and Khushal Singh. We are unable to accept this submission. Paramsukhdas is entitled to raise all points to protect his interests which were affected by the objections. It is also in the interest of justice that there should not be multifarious proceedings and all points arising which are not expressly barred under Section 21 should be gone into by the Court.21. This leaves only the two points regarding the jurisdiction of the High Court. In our view, the High Court is quite right in holding that the orders of the Civil Judge dated April 9, 1962, were not awards within Section 54 of the Act. The awards had still to be made. If no appeal lay, then the revisions were competent and the High Court was right in entertaining the revisions because the Civil Judge had either refused to exercise jurisdiction vesting in him or had acted with material irregularity in the exercise of his jurisdiction. | 0[ds]It is not necessary that in order to fall within the definition a person should claim an interest in land, which has been acquired. A person becomes a person interested if he claims an interest in compensation to be awarded. It seems to us that Paramsukhdas is a "person interested" within Section 3 (b) of the Act because he claims an interest in compensation.But before he can be made a party in a reference it has to be seen whether he comes within Section 20 (b) and Section 21 of the Act.11. The scheme of the Act seems to be to first deal with persons who are interested in land. These persons are heard under Section 5A of theprovisions of the Act, including Ss. 20 and 21, do not prescribe that his claim to an interest in compensation should be "as compensation", as urged by Mr. Desai. This is really a contradictory statement. For, a fortiori, he has no interest in land, and compensation is given for interests in land. He can never claim compensation qua compensation for what he claims is an interest in the compensation to be awarded. This is not to say that A person claiming an interest in compensation may not claim that the compensation awarded for the acquired land is low, if it affects hishas not been urged before us that Paramsukhdas was a party before the Collector and that having not applied for a reference under Section 18 he is now debarred from being added as athree cases are distinguishable inasmuch as they are dealing with the cases of persons who having a right to seek a reference failed to claim that reference but sought to raise the point in a reference made at the instance of another party.It seems to us that Paramsukhdas was clearly a person interested in the objections which were pending before the Court in the references made to it and that he was also a person whose interest would be affected by the objections, within Section 21 He was accordingly entitled to be made a party. In the result we uphold the order made by the High Court in thisare unable to accept this submission. Paramsukhdas is entitled to raise all points to protect his interests which were affected by the objections. It is also in the interest of justice that there should not be multifarious proceedings and all points arising which are not expressly barred under Section 21 should be gone into by the Court.21. This leaves only the two points regarding the jurisdiction of the High Court. In our view, the High Court is quite right in holding that the orders of the Civil Judge dated April 9, 1962, were not awards within Section 54 of the Act. The awards had still to be made. If no appeal lay, then the revisions were competent and the High Court was right in entertaining the revisions because the Civil Judge had either refused to exercise jurisdiction vesting in him or had acted with material irregularity in the exercise of his jurisdiction. | 0 | 4,319 | 554 | ### 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:
a person on whom the title of the person interested has devolved be granted, there is no reason why the right to claim a reference of a dispute about the person entitled to compensation may not be exercised by the person on whom the title has devolved since the date of the award.The scheme of the Land Acquisition Act is that all disputes about the quantum of compensation must be decided by resort to the procedure prescribed by the Act; it is also intended that disputes about the rights of owners to compensation being ancillary to the principal dispute should be decided by the Court to which power is entrusted. Jurisdiction of the Court in this behalf is not restricted to cases of apportionment, but extends to adjudication of disputes as to the person who are entitled to receive compensation, and there is nothing in Sec. 30which excludes a reference to the Court of a dispute raised by a person on whom the title of the owner of land has, since the award, devolved."14. In Gola Khan v. Bholanath Marick, (1910) 12 Cal LJ 545 an attaching creditor was directed to be made a party to the reference under the Land Acquisition Act, before the Civil Court, Mookerjee, J., observed :"The petitioner was entitled to be added as a party not under Rule 10, but on the ground that he was a person interested in the subject-matter of the litigation and that no order ought to have been made for its disposal without any opportunity afforded to him to establish his claim."15. In Siva Pratapa Bhattadu v. A. E. L. Mission, AIR 1926 Mad 307 an attaching creditor was held to be a person interested within Section 3 (b) of the Act.16. Mr. Desai relies on AIR 1956 Cal 263 but in that case the point decided by the Court was different. It was held there that if a party to a land acquisition proceeding before the Collector had not obtained a reference under Section 18 of the Act, its representative could not do indirectly what they did not do directly, i. e. they could not be added a party in a reference pending at the instance of other parties in order that the nil award against the party might be reversed and in order that they might be awarded a share of the compensation money. Here no such point has been raised. It has not been urged before us that Paramsukhdas was a party before the Collector and that having not applied for a reference under Section 18 he is now debarred from being added as a party.17. The case of Govinda Kumar Roy v. Debendra Kumar, (1908) l2 Cal WN 98 was also decided on the same lines. Similar view was reiterated in Mahammad Safi v. Haran Chandra, (1908) 12 Cal WN 985. Both these cases had followed (1907) ILR 34 Cal 451 . Maclean, C. J., observed as follows in (1907) ILR 34 Cal 451 :"If we read that Section in connection with Section 20 and Section 18, I think it is impossible to avoid the conclusion that the Legislature intended that all that the Court could deal with was objection which had been referred to it; and this seems to be a view consistent with common sense and with the ordinary method of procedure in civil cases. The zemindar here could, if he liked, have raised the objection as to the whole compensation for the trees being given to the tenants, but he did not do so. He must, therefore, be taken to have accepted the award in that respect; and it would be little less than dangerous if we were to hold that that the Judge to whom only one objection was referred could go into all sorts of questions and objections which had not been referred to him.".These three cases are distinguishable inasmuch as they are dealing with the cases of persons who having a right to seek a reference failed to claim that reference but sought to raise the point in a reference made at the instance of another party.18. The case of Karuna Sindhu Dhar v. Panna Lal Paramanik, (1961) 115 Cal WN 802 also does not assist the appellant. The High Court held in that case that as Raj mohan never claimed the entire compensation money before the Collector, the Land Acquisition Judge was not entitled to vary the awards by a declaration that Rajmohan alone was entitled to get the compensation.19. It seems to us that Paramsukhdas was clearly a person interested in the objections which were pending before the Court in the references made to it and that he was also a person whose interest would be affected by the objections, within Section 21 He was accordingly entitled to be made a party. In the result we uphold the order made by the High Court in this respect.20. Mr. Desai says that at any rate direction should be given that Paramsukhdas should not be entitled to challenge the compromise entered into between Sunderlal and Khushal Singh. We are unable to accept this submission. Paramsukhdas is entitled to raise all points to protect his interests which were affected by the objections. It is also in the interest of justice that there should not be multifarious proceedings and all points arising which are not expressly barred under Section 21 should be gone into by the Court.21. This leaves only the two points regarding the jurisdiction of the High Court. In our view, the High Court is quite right in holding that the orders of the Civil Judge dated April 9, 1962, were not awards within Section 54 of the Act. The awards had still to be made. If no appeal lay, then the revisions were competent and the High Court was right in entertaining the revisions because the Civil Judge had either refused to exercise jurisdiction vesting in him or had acted with material irregularity in the exercise of his jurisdiction.
### Response:
0
### Explanation:
It is not necessary that in order to fall within the definition a person should claim an interest in land, which has been acquired. A person becomes a person interested if he claims an interest in compensation to be awarded. It seems to us that Paramsukhdas is a "person interested" within Section 3 (b) of the Act because he claims an interest in compensation.But before he can be made a party in a reference it has to be seen whether he comes within Section 20 (b) and Section 21 of the Act.11. The scheme of the Act seems to be to first deal with persons who are interested in land. These persons are heard under Section 5A of theprovisions of the Act, including Ss. 20 and 21, do not prescribe that his claim to an interest in compensation should be "as compensation", as urged by Mr. Desai. This is really a contradictory statement. For, a fortiori, he has no interest in land, and compensation is given for interests in land. He can never claim compensation qua compensation for what he claims is an interest in the compensation to be awarded. This is not to say that A person claiming an interest in compensation may not claim that the compensation awarded for the acquired land is low, if it affects hishas not been urged before us that Paramsukhdas was a party before the Collector and that having not applied for a reference under Section 18 he is now debarred from being added as athree cases are distinguishable inasmuch as they are dealing with the cases of persons who having a right to seek a reference failed to claim that reference but sought to raise the point in a reference made at the instance of another party.It seems to us that Paramsukhdas was clearly a person interested in the objections which were pending before the Court in the references made to it and that he was also a person whose interest would be affected by the objections, within Section 21 He was accordingly entitled to be made a party. In the result we uphold the order made by the High Court in thisare unable to accept this submission. Paramsukhdas is entitled to raise all points to protect his interests which were affected by the objections. It is also in the interest of justice that there should not be multifarious proceedings and all points arising which are not expressly barred under Section 21 should be gone into by the Court.21. This leaves only the two points regarding the jurisdiction of the High Court. In our view, the High Court is quite right in holding that the orders of the Civil Judge dated April 9, 1962, were not awards within Section 54 of the Act. The awards had still to be made. If no appeal lay, then the revisions were competent and the High Court was right in entertaining the revisions because the Civil Judge had either refused to exercise jurisdiction vesting in him or had acted with material irregularity in the exercise of his jurisdiction.
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Indian Aluminium Co. Ltd Vs. Thane Municipal Corporation | to the directions of the High Court. Hence no further verification was necessary. Therefore these two cases are distinguishable. However, a concession has to be availed at the time when it was available and in the manner prescribed. The common dictionary meaning of the word "concession" is the act of yielding or conceding as 10 a demand or argument, something conceded; usually implying a demand. claim, or request, "a thing yielded", "a grant".In the Dictionary of English Law by Earl Jowitt, the meaning of "concession" is given as under: "Concession, a grant by a central or local public authority to a private person or private persons for the utilisation or working of lands, an industry, a railway waterworks, etc." The expressions "rebate" and "concession" in the commercial parlance have the same concept. In Halsburys Laws of England, 4th edn. Para 198 it is observed as under: "Application for rebate. When a rating authority receives an application for a rebate it has a duty to determine whether the residential occupier is entitled to a rebate and, if so, the amount to which he is entitled; and it must request him in writing to furnish such information and evidence as it may reasonably require as to the persons who reside in the hereditament, his income, and the income of his spouse. Unless the rating authority is satisfied that the residential occupier has furnished all the information and evidence it requires, it is under no duty to grant a rebate. " (emphasis supplied) In Kedarnath Jute Manufacturing Co. v. Commercial Tax Officer, Calcutta and Ors. 1965 (3) SCR 626 , the appellant which was a public limited Company, sought exemption under the provisions of the Bengal Finance (Sales Tax) Act, 1941 in respect of certain sales but did not produce before the Officer the declaration forms from the purchaser dealers required to be produced under the proviso to that sub-clause granting exemption. It was contended on behalf of the appellant that proviso to the sub-clause was only directory and the dealer is not precluded where the proviso is not strictly complied with from producing other relevant evidence to prove that the s ales were for the purposes mentioned in the said sub-clause. The contention on behalf of the respondent was that the dealer can claim exemption under the sub-clause but he must comply strictly with the conditions under which the exemption can be grant ed. Rejecting the appellants contention, this Court held thus: "Section 5(2)(a) (ii) of the Act in effect exempts a specified turnover of a dealer from sales tax. The provision prescribing the exemption shall, therefore, be strictly construed. The substantive clause gives the exemption and the proviso qualifies the substantive clause. In effect the proviso says that part of the turnover of the selling dealer covered by the terms of sub-clause (ii) will be exempted provided a declaration in the form prescribed is furnished. To put it in other words, a dealer cannot get the exemption unless he furnishes the declaration in the prescribed form." * It was further held as under: "There is an understandable reason for the stringency of the provision s. The object of S. 5(2) (a) (ii) of the Act and the rules made thereunder is self-evident. While they are obviously intended to give exemption to a dealer in respect of sales to registered dealers of specified classes of goods, it seeks also to prevent fraud and collusion in an attempt to evade tax. In the nature of things, in view of innumerable transactions that may be entered into between dealers, it will wellnigh be impossible for the taxing authorities to ascertain in each case whether a dealer has sold the specified goods to an other for the purposes mentioned in the section. Therefore, presumably to achieve the twofold object, namely, prevention of fraud and facilitating administrative efficiency, the exemption given is made subject to a condition that the person claiming the exemption shall furnish a decalration form in the manner prescribed under the section. The liberal construction suggested will facilitate the commission of fraud and introduce administrative inconveniences, both of which the provisions of the said clause seek to avoid" * It can thus be seen that the submission namely that the dealer, even without filing a declaration, can later prove his case by producing other evidence, is also rejected. This ratio applies on all fours to the case before us. As already mentioned the concession can be granted only if the raw material is used in the industrial undertaking seeking such concession. For that a verification was necessary and that is why in the rule itself it is mentioned that a declaration has to be filed in Form 14 facilitating verification. Failure to file the same would automatically disentitle the Company from claiming any such concession.In any event the petitioner Company cannot claim concession at this distance as a matter of right. In Orissa Cement Ltd. v. State of Orissa &Ors, 1991 AIR(SC) 1676, it was observed thus: "We are inclined to accept the view urged on behalf of the State that a finding regarding the invalidity of a levy need not automatically result in a direction for a refund of all collections thereof made earlier. The decalration regarding the invalidity of a provision and the determination of the relief that should be granted in consequence thereof are two different things and, in the latter sphere, the Court has, and must be held to have, a certain amount of discretion. It is well-settled proposition that it is open to the Court to grant, mould or restrict the relief in a manner most appropriate to the situation before it in such a way as to advance the interests of justice." In the instant case the octroi duty paid by the petitioner Company would naturally have been passed on to the consumers. Therefore there is no justification to claim the same at this distance of time and the court in its discretion can reject the same. | 0[ds]The learned counsel, however, submitted that even now the authorities can verify the necessary records which are audited and submitted to the authorities and find out whether the material was used in its own undertaking or not. We do not think we c an accede to this contention. Having failed to file the necessary declaration he cannot now turn-around and ask the authorities to make a verification of some records. The verification at the time when the raw material was still there is entirely different from a verification at a belated stage after it has ceased to be there. May be that the raw-material was used in the industrial undertaking as claimed by the petitioner Company or it may not be. In any event the failure to file the necessary declaration has necessarily prevented the authorities to have a properon these observations, Shri Ganesh, learned counsel for the petitioner Company contended that in the instant case though the procedural requirement is not fulfilled by filing a declaration in Form 14, still that is not a bar to invoke the jurisdiction of the civil court or the High Court by way of a writ and seek a refund.We are unable to agree. In Duggals case, the appellant, as a matter of fact, obtained certificate but failed to make the application for refund within time. It is in that context this Court observed that the Municipality was under a statutory obligation once the procedure followed is fulfilled and if it is not fulfilled the Municipality may decline. The granting of a certificate that the appellant used the goods for Government work made all the difference. But, in the instant case, the non-fulfillment of the requirement even though procedural, has disentitled the petitioner Company because there was no way to verify whether it was entitled for suchcan thus be seen that the submission namely that the dealer, even without filing a declaration, can later prove his case by producing other evidence, is also rejected. This ratio applies on all fours to the case before us. As already mentioned the concession can be granted only if the raw material is used in the industrial undertaking seeking such concession. For that a verification was necessary and that is why in the rule itself it is mentioned that a declaration has to be filed in Form 14 facilitating verification. Failure to file the same would automatically disentitle the Company from claiming any such concession.In any event the petitioner Company cannot claim concession at this distance as a matter ofthe instant case the octroi duty paid by the petitioner Company would naturally have been passed on to the consumers. Therefore there is no justification to claim the same at this distance of time and the court in its discretion can reject the same. For the above reasons, this Special Leave Petition is dismissed with costs. | 0 | 3,496 | 515 | ### 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:
to the directions of the High Court. Hence no further verification was necessary. Therefore these two cases are distinguishable. However, a concession has to be availed at the time when it was available and in the manner prescribed. The common dictionary meaning of the word "concession" is the act of yielding or conceding as 10 a demand or argument, something conceded; usually implying a demand. claim, or request, "a thing yielded", "a grant".In the Dictionary of English Law by Earl Jowitt, the meaning of "concession" is given as under: "Concession, a grant by a central or local public authority to a private person or private persons for the utilisation or working of lands, an industry, a railway waterworks, etc." The expressions "rebate" and "concession" in the commercial parlance have the same concept. In Halsburys Laws of England, 4th edn. Para 198 it is observed as under: "Application for rebate. When a rating authority receives an application for a rebate it has a duty to determine whether the residential occupier is entitled to a rebate and, if so, the amount to which he is entitled; and it must request him in writing to furnish such information and evidence as it may reasonably require as to the persons who reside in the hereditament, his income, and the income of his spouse. Unless the rating authority is satisfied that the residential occupier has furnished all the information and evidence it requires, it is under no duty to grant a rebate. " (emphasis supplied) In Kedarnath Jute Manufacturing Co. v. Commercial Tax Officer, Calcutta and Ors. 1965 (3) SCR 626 , the appellant which was a public limited Company, sought exemption under the provisions of the Bengal Finance (Sales Tax) Act, 1941 in respect of certain sales but did not produce before the Officer the declaration forms from the purchaser dealers required to be produced under the proviso to that sub-clause granting exemption. It was contended on behalf of the appellant that proviso to the sub-clause was only directory and the dealer is not precluded where the proviso is not strictly complied with from producing other relevant evidence to prove that the s ales were for the purposes mentioned in the said sub-clause. The contention on behalf of the respondent was that the dealer can claim exemption under the sub-clause but he must comply strictly with the conditions under which the exemption can be grant ed. Rejecting the appellants contention, this Court held thus: "Section 5(2)(a) (ii) of the Act in effect exempts a specified turnover of a dealer from sales tax. The provision prescribing the exemption shall, therefore, be strictly construed. The substantive clause gives the exemption and the proviso qualifies the substantive clause. In effect the proviso says that part of the turnover of the selling dealer covered by the terms of sub-clause (ii) will be exempted provided a declaration in the form prescribed is furnished. To put it in other words, a dealer cannot get the exemption unless he furnishes the declaration in the prescribed form." * It was further held as under: "There is an understandable reason for the stringency of the provision s. The object of S. 5(2) (a) (ii) of the Act and the rules made thereunder is self-evident. While they are obviously intended to give exemption to a dealer in respect of sales to registered dealers of specified classes of goods, it seeks also to prevent fraud and collusion in an attempt to evade tax. In the nature of things, in view of innumerable transactions that may be entered into between dealers, it will wellnigh be impossible for the taxing authorities to ascertain in each case whether a dealer has sold the specified goods to an other for the purposes mentioned in the section. Therefore, presumably to achieve the twofold object, namely, prevention of fraud and facilitating administrative efficiency, the exemption given is made subject to a condition that the person claiming the exemption shall furnish a decalration form in the manner prescribed under the section. The liberal construction suggested will facilitate the commission of fraud and introduce administrative inconveniences, both of which the provisions of the said clause seek to avoid" * It can thus be seen that the submission namely that the dealer, even without filing a declaration, can later prove his case by producing other evidence, is also rejected. This ratio applies on all fours to the case before us. As already mentioned the concession can be granted only if the raw material is used in the industrial undertaking seeking such concession. For that a verification was necessary and that is why in the rule itself it is mentioned that a declaration has to be filed in Form 14 facilitating verification. Failure to file the same would automatically disentitle the Company from claiming any such concession.In any event the petitioner Company cannot claim concession at this distance as a matter of right. In Orissa Cement Ltd. v. State of Orissa &Ors, 1991 AIR(SC) 1676, it was observed thus: "We are inclined to accept the view urged on behalf of the State that a finding regarding the invalidity of a levy need not automatically result in a direction for a refund of all collections thereof made earlier. The decalration regarding the invalidity of a provision and the determination of the relief that should be granted in consequence thereof are two different things and, in the latter sphere, the Court has, and must be held to have, a certain amount of discretion. It is well-settled proposition that it is open to the Court to grant, mould or restrict the relief in a manner most appropriate to the situation before it in such a way as to advance the interests of justice." In the instant case the octroi duty paid by the petitioner Company would naturally have been passed on to the consumers. Therefore there is no justification to claim the same at this distance of time and the court in its discretion can reject the same.
### Response:
0
### Explanation:
The learned counsel, however, submitted that even now the authorities can verify the necessary records which are audited and submitted to the authorities and find out whether the material was used in its own undertaking or not. We do not think we c an accede to this contention. Having failed to file the necessary declaration he cannot now turn-around and ask the authorities to make a verification of some records. The verification at the time when the raw material was still there is entirely different from a verification at a belated stage after it has ceased to be there. May be that the raw-material was used in the industrial undertaking as claimed by the petitioner Company or it may not be. In any event the failure to file the necessary declaration has necessarily prevented the authorities to have a properon these observations, Shri Ganesh, learned counsel for the petitioner Company contended that in the instant case though the procedural requirement is not fulfilled by filing a declaration in Form 14, still that is not a bar to invoke the jurisdiction of the civil court or the High Court by way of a writ and seek a refund.We are unable to agree. In Duggals case, the appellant, as a matter of fact, obtained certificate but failed to make the application for refund within time. It is in that context this Court observed that the Municipality was under a statutory obligation once the procedure followed is fulfilled and if it is not fulfilled the Municipality may decline. The granting of a certificate that the appellant used the goods for Government work made all the difference. But, in the instant case, the non-fulfillment of the requirement even though procedural, has disentitled the petitioner Company because there was no way to verify whether it was entitled for suchcan thus be seen that the submission namely that the dealer, even without filing a declaration, can later prove his case by producing other evidence, is also rejected. This ratio applies on all fours to the case before us. As already mentioned the concession can be granted only if the raw material is used in the industrial undertaking seeking such concession. For that a verification was necessary and that is why in the rule itself it is mentioned that a declaration has to be filed in Form 14 facilitating verification. Failure to file the same would automatically disentitle the Company from claiming any such concession.In any event the petitioner Company cannot claim concession at this distance as a matter ofthe instant case the octroi duty paid by the petitioner Company would naturally have been passed on to the consumers. Therefore there is no justification to claim the same at this distance of time and the court in its discretion can reject the same. For the above reasons, this Special Leave Petition is dismissed with costs.
|
The Commissioner Of Income-Tax, Bombay Vs. S. K. F. Ball Bearing Co., Ltd | were received by the foreign corporations when the S. K. F. made remittances under cl. 23 of the agreement, but somewhat inconsistently the High Court observed that the remittances made by the S. K. F. before the sale proceeds were realised, were remittances not of sale proceeds, but in discharge of its obligation under cl. 23 of the agreement; and that the realisations by the S. K. F. from the buyers of the goods subsequent to the remittances were not of sale proceeds on behalf of the foreign corporations but were receipts on its own behalf and in its own right, and in recoupment of the amounts remitted to the foreign corporations. The High Court accordingly answered the second question in the affirmative "to the extent that the remittances were made after the sale proceeds were received by the assessee company". 6.We are unable to agree with the reasoning and the conclusion of the High Court. The terms of the agreement make it abundantly clear that the goods "received on consignment" from the foreign corporations were received by the S. K. F. as their sell-agent and not as purchaser. The goods, it is true, were sold by the S. K. F. in its own name and not in the name of the foreign corporations, but the goods were still sold for and on behalf of the foreign corporations, and the sale proceeds received by the S. K. F. were received not on its own behalf but for and on behalf of its principals. Clauses 9, 12, 13, 14, 17, 18 and 20 of the agreement clearly show that the goods received by the S. K. F. continued to remain the property of the foreign corporations till they were sold to the buyers.In the price received for sale of the goods, the profit of the owner was in truth embedded and that profit was liable to be taxed under S. 4(1)(a) of the Indian Income-tax Act if it was received in the taxable territory. It is not disputed that the sale proceeds realised by the S. K. F. in the taxable territory as agent of the foreign corporations before remittances under the terms of the agreement were liable to be taxed. Does the circumstance that the S. K. F. had in discharge of an obligation undertaken by it made remittances under the terms of the agreement before it realised the price of the goods sold alter the nature of the realisations? The remittances made by the S. K. F. indisputably reached the foreign corporations in respect of all sales outside the taxable territory. But the S. K. F. was their agent for sale of the goods, and for receiving the price in the taxable territory. The relation between the S. K. F. and the foreign corporations was not altered because before realising the price from the buyers remittances were made to the foreign corporations. The price of goods sold by the S. K. F. whether before or after remittance was realised as the agent of the foreign corporations. If remittance in respect of a sale was made before the price was realised, the S. K. F. became entitled to adjust the account and to take credit for the amount paid out of the realisation. What the foreign corporations received under remittances made before or after realisation of the price was not the sale proceeds in respect of sales, but amounts due by the S. K. F. under an obligation expressly undertaken by it under cl. 23 of the agreement. The price of goods sold by the S. K. F. were in all cases received by it within the taxable territory; and the S. K. F. being the agent for sale, and for receiving the price, the income embedded in the sale proceeds must be deemed to be received by the foreign corporations also within the taxable territory. It is the receipt of income which gives rise under S. 4(1)(a) of the Indian Income-tax Act to liability to pay tax: and the place where the price is received is determinative of the question whether the income is received in the taxable territory. 7. The price for the goods sold was received only when the buyer paid it and not before, and when the price was received by the S. K. F., the income was received. The remittances by the S. K. F. to the foreign corporations before the price was received did not include income, because income in fact was never received till the price was realised. Again we are unable to agree with the contention of counsel for the S. K. F. that there was a contract of surety-ship between the foreign corporations and the S. K. F. and the receipt by the former of the remittances amounted to receipt of the price of the goods. It is not pretended that there was a tripartite contract and the foreign corporations sold the goods directly to the purchasers in India, the S. K. F. having guaranteed payment of the price by the buyers to whom the goods had been sold. 8. The price received by the S. K. F. being received within the taxable territory for and on behalf of the foreign corporations in respect of goods sold, we are unable to hold that the realisation of the price in which is embedded the profit is not liable to tax under S. 4(1)(a) as income received, merely because under an independent obligation, the S. K. F. has rendered itself liable to pay the amount equivalent to the price (less commission) even before the price has been realised and has discharged that obligation. 9. In the view taken by us, the second question will be answered in the affirmative in respect of sale of all goods where the price has been received by the S. K. F. in the taxable territory, and irrespective of whether the remittance has been made in respect of the goods sold before or after the price was received. | 1[ds]e are unable to agree with the reasoning and the conclusion of the High Court. The terms of the agreement make it abundantly clear that the goods "received on consignment" from the foreign corporations were received by the S. K. F. as their sell-agent and not as purchaser. The goods, it is true, were sold by the S. K. F. in its own name and not in the name of the foreign corporations, but the goods were still sold for and on behalf of the foreign corporations, and the sale proceeds received by the S. K. F. were received not on its own behalf but for and on behalf of its principals. Clauses 9, 12, 13, 14, 17, 18 and 20 of the agreement clearly show that the goods received by the S. K. F. continued to remain the property of the foreign corporations till they were sold to the buyers.In the price received for sale of the goods, the profit of the owner was in truth embedded and that profit was liable to be taxed under S. 4(1)(a) of the Indian Income-tax Act if it was received in the taxable territory. It is not disputed that the sale proceeds realised by the S. K. F. in the taxable territory as agent of the foreign corporations before remittances under the terms of the agreement were liable to be taxedThe remittances made by the S. K. F. indisputably reached the foreign corporations in respect of all sales outside the taxable territory. But the S. K. F. was their agent for sale of the goods, and for receiving the price in the taxable territory. The relation between the S. K. F. and the foreign corporations was not altered because before realising the price from the buyers remittances were made to the foreign corporations. The price of goods sold by the S. K. F. whether before or after remittance was realised as the agent of the foreign corporations. If remittance in respect of a sale was made before the price was realised, the S. K. F. became entitled to adjust the account and to take credit for the amount paid out of the realisation. What the foreign corporations received under remittances made before or after realisation of the price was not the sale proceeds in respect of sales, but amounts due by the S. K. F. under an obligation expressly undertaken by it under cl. 23 of the agreement. The price of goods sold by the S. K. F. were in all cases received by it within the taxable territory; and the S. K. F. being the agent for sale, and for receiving the price, the income embedded in the sale proceeds must be deemed to be received by the foreign corporations also within the taxable territory. It is the receipt of income which gives rise under S. 4(1)(a) of the Indian Income-tax Act to liability to pay tax: and the place where the price is received is determinative of the question whether the income is received in the taxable territory7. The price for the goods sold was received only when the buyer paid it and not before, and when the price was received by the S. K. F., the income was received. The remittances by the S. K. F. to the foreign corporations before the price was received did not include income, because income in fact was never received till the price was realised. Again we are unable to agree with the contention of counsel for the S. K. F. that there was a contract of surety-ship between the foreign corporations and the S. K. F. and the receipt by the former of the remittances amounted to receipt of the price of the goods. It is not pretended that there was a tripartite contract and the foreign corporations sold the goods directly to the purchasers in India, the S. K. F. having guaranteed payment of the price by the buyers to whom the goods had been sold8. The price received by the S. K. F. being received within the taxable territory for and on behalf of the foreign corporations in respect of goods sold, we are unable to hold that the realisation of the price in which is embedded the profit is not liable to tax under S. 4(1)(a) as income received, merely because under an independent obligation, the S. K. F. has rendered itself liable to pay the amount equivalent to the price (less commission) even before the price has been realised and has discharged that obligation9. In the view taken by us, the second question will be answered in the affirmative in respect of sale of all goods where the price has been received by the S. K. F. in the taxable territory, and irrespective of whether the remittance has been made in respect of the goods sold before or after the price was received | 1 | 2,333 | 885 | ### 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:
were received by the foreign corporations when the S. K. F. made remittances under cl. 23 of the agreement, but somewhat inconsistently the High Court observed that the remittances made by the S. K. F. before the sale proceeds were realised, were remittances not of sale proceeds, but in discharge of its obligation under cl. 23 of the agreement; and that the realisations by the S. K. F. from the buyers of the goods subsequent to the remittances were not of sale proceeds on behalf of the foreign corporations but were receipts on its own behalf and in its own right, and in recoupment of the amounts remitted to the foreign corporations. The High Court accordingly answered the second question in the affirmative "to the extent that the remittances were made after the sale proceeds were received by the assessee company". 6.We are unable to agree with the reasoning and the conclusion of the High Court. The terms of the agreement make it abundantly clear that the goods "received on consignment" from the foreign corporations were received by the S. K. F. as their sell-agent and not as purchaser. The goods, it is true, were sold by the S. K. F. in its own name and not in the name of the foreign corporations, but the goods were still sold for and on behalf of the foreign corporations, and the sale proceeds received by the S. K. F. were received not on its own behalf but for and on behalf of its principals. Clauses 9, 12, 13, 14, 17, 18 and 20 of the agreement clearly show that the goods received by the S. K. F. continued to remain the property of the foreign corporations till they were sold to the buyers.In the price received for sale of the goods, the profit of the owner was in truth embedded and that profit was liable to be taxed under S. 4(1)(a) of the Indian Income-tax Act if it was received in the taxable territory. It is not disputed that the sale proceeds realised by the S. K. F. in the taxable territory as agent of the foreign corporations before remittances under the terms of the agreement were liable to be taxed. Does the circumstance that the S. K. F. had in discharge of an obligation undertaken by it made remittances under the terms of the agreement before it realised the price of the goods sold alter the nature of the realisations? The remittances made by the S. K. F. indisputably reached the foreign corporations in respect of all sales outside the taxable territory. But the S. K. F. was their agent for sale of the goods, and for receiving the price in the taxable territory. The relation between the S. K. F. and the foreign corporations was not altered because before realising the price from the buyers remittances were made to the foreign corporations. The price of goods sold by the S. K. F. whether before or after remittance was realised as the agent of the foreign corporations. If remittance in respect of a sale was made before the price was realised, the S. K. F. became entitled to adjust the account and to take credit for the amount paid out of the realisation. What the foreign corporations received under remittances made before or after realisation of the price was not the sale proceeds in respect of sales, but amounts due by the S. K. F. under an obligation expressly undertaken by it under cl. 23 of the agreement. The price of goods sold by the S. K. F. were in all cases received by it within the taxable territory; and the S. K. F. being the agent for sale, and for receiving the price, the income embedded in the sale proceeds must be deemed to be received by the foreign corporations also within the taxable territory. It is the receipt of income which gives rise under S. 4(1)(a) of the Indian Income-tax Act to liability to pay tax: and the place where the price is received is determinative of the question whether the income is received in the taxable territory. 7. The price for the goods sold was received only when the buyer paid it and not before, and when the price was received by the S. K. F., the income was received. The remittances by the S. K. F. to the foreign corporations before the price was received did not include income, because income in fact was never received till the price was realised. Again we are unable to agree with the contention of counsel for the S. K. F. that there was a contract of surety-ship between the foreign corporations and the S. K. F. and the receipt by the former of the remittances amounted to receipt of the price of the goods. It is not pretended that there was a tripartite contract and the foreign corporations sold the goods directly to the purchasers in India, the S. K. F. having guaranteed payment of the price by the buyers to whom the goods had been sold. 8. The price received by the S. K. F. being received within the taxable territory for and on behalf of the foreign corporations in respect of goods sold, we are unable to hold that the realisation of the price in which is embedded the profit is not liable to tax under S. 4(1)(a) as income received, merely because under an independent obligation, the S. K. F. has rendered itself liable to pay the amount equivalent to the price (less commission) even before the price has been realised and has discharged that obligation. 9. In the view taken by us, the second question will be answered in the affirmative in respect of sale of all goods where the price has been received by the S. K. F. in the taxable territory, and irrespective of whether the remittance has been made in respect of the goods sold before or after the price was received.
### Response:
1
### Explanation:
e are unable to agree with the reasoning and the conclusion of the High Court. The terms of the agreement make it abundantly clear that the goods "received on consignment" from the foreign corporations were received by the S. K. F. as their sell-agent and not as purchaser. The goods, it is true, were sold by the S. K. F. in its own name and not in the name of the foreign corporations, but the goods were still sold for and on behalf of the foreign corporations, and the sale proceeds received by the S. K. F. were received not on its own behalf but for and on behalf of its principals. Clauses 9, 12, 13, 14, 17, 18 and 20 of the agreement clearly show that the goods received by the S. K. F. continued to remain the property of the foreign corporations till they were sold to the buyers.In the price received for sale of the goods, the profit of the owner was in truth embedded and that profit was liable to be taxed under S. 4(1)(a) of the Indian Income-tax Act if it was received in the taxable territory. It is not disputed that the sale proceeds realised by the S. K. F. in the taxable territory as agent of the foreign corporations before remittances under the terms of the agreement were liable to be taxedThe remittances made by the S. K. F. indisputably reached the foreign corporations in respect of all sales outside the taxable territory. But the S. K. F. was their agent for sale of the goods, and for receiving the price in the taxable territory. The relation between the S. K. F. and the foreign corporations was not altered because before realising the price from the buyers remittances were made to the foreign corporations. The price of goods sold by the S. K. F. whether before or after remittance was realised as the agent of the foreign corporations. If remittance in respect of a sale was made before the price was realised, the S. K. F. became entitled to adjust the account and to take credit for the amount paid out of the realisation. What the foreign corporations received under remittances made before or after realisation of the price was not the sale proceeds in respect of sales, but amounts due by the S. K. F. under an obligation expressly undertaken by it under cl. 23 of the agreement. The price of goods sold by the S. K. F. were in all cases received by it within the taxable territory; and the S. K. F. being the agent for sale, and for receiving the price, the income embedded in the sale proceeds must be deemed to be received by the foreign corporations also within the taxable territory. It is the receipt of income which gives rise under S. 4(1)(a) of the Indian Income-tax Act to liability to pay tax: and the place where the price is received is determinative of the question whether the income is received in the taxable territory7. The price for the goods sold was received only when the buyer paid it and not before, and when the price was received by the S. K. F., the income was received. The remittances by the S. K. F. to the foreign corporations before the price was received did not include income, because income in fact was never received till the price was realised. Again we are unable to agree with the contention of counsel for the S. K. F. that there was a contract of surety-ship between the foreign corporations and the S. K. F. and the receipt by the former of the remittances amounted to receipt of the price of the goods. It is not pretended that there was a tripartite contract and the foreign corporations sold the goods directly to the purchasers in India, the S. K. F. having guaranteed payment of the price by the buyers to whom the goods had been sold8. The price received by the S. K. F. being received within the taxable territory for and on behalf of the foreign corporations in respect of goods sold, we are unable to hold that the realisation of the price in which is embedded the profit is not liable to tax under S. 4(1)(a) as income received, merely because under an independent obligation, the S. K. F. has rendered itself liable to pay the amount equivalent to the price (less commission) even before the price has been realised and has discharged that obligation9. In the view taken by us, the second question will be answered in the affirmative in respect of sale of all goods where the price has been received by the S. K. F. in the taxable territory, and irrespective of whether the remittance has been made in respect of the goods sold before or after the price was received
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Madan Gopal Kanodia Vs. Mamraj Maniram and Othersand Vice Versa | The High Court itself observed in its judgment that the original khata and the original rokar Exhibits 30 and 31 respectively relating to Samavat Years 2004 to 2007 had been filed by the plaintiff along with the plaint. The entries contained in the Nakal Bahis were merely reproduction of the entries mentioned in Ext. 30. Therefore, the question of the entries in Nakal Bahis being fabricated or spurious could not arise. The Nakal Bahis merely give further particulars or details of the entries already mentioned in the ledger or the khata. If in these circumstances, therefore, the court exercised its direction under Order 13, Rule 2, C.P.C. to condone the delay and allowed the plaintiff to produce the documents we do not see any error at all which could have been committed by the trial Court. In fact the High Court has completely overlooked the facts mentioned by us and which are contained in the order-sheet of the trial Court. Thus to begin with, the entire approach of the High Court to the case of the plaintiff and the evidence led by him was absolutely wrong. 15. This brings us now to the question as to whether or not the plaintiff has proved that the 21 bales of cloth which were undoubtedly entrusted to the defendants for being deposited in their godown were sold by the defendants and the sale proceeds paid to the plaintiff. Once it is proved that the defendants were in possession of the 21 bales of the cloth which formed part of the 200 bales of cloth, it was the duty of the defendants to account for the same, and excepting a bare denial the defendants have given no other explanation. On the other hand, the plaintiff has produced both oral and documentary evidence to prove that these goods were sold by the defendants and that the sale proceeds were not given to the plaintiff as a result of which he had to make debit entries even at the instance of the defendants. The trial Court considered this matter at great length but the High Court appears to have overlooked this aspect of the case. (The Court considered the plaintiffs evidence.) 16. On a careful consideration of the oral and documentary evidence produced by the plaintiff on this point we are satisfied that the plaintiffs claim with this regard to item (a) of the plaint, namely, the price of 21 bales of cloth which had been sold by the defendants firm and whose sale proceeds were not paid to the plaintiff has been proved to our satisfaction. The High Court was, therefore, wrong in disallowing this claim. The total claim of the plaintiff as regards this item comes to Rs. 21, 686/11/3 which may be rounded off to Rs. 21, 686. 17. We now come to item (b) of the plaint which is the claim of the plaintiff for an amount of Rs. 8824-8-3 which may be rounded off to Rs. 8824. This claim is on account of the price of the goods sent by the plaintiff to the defendants for retail sale and which having been sold the price thereof was not paid to the plaintiff. The trial Court accepted the claim of the plaintiff, but the High Court disallowed this claim after finding that the plaintiff had not been able to prove this part of the claim. After having gone through the evidence we find ourselves in agreement with the finding of the High Court on this point.* * * 18. The last item consists of a sum of Rs. 3819/14/6 which may be rounded off to Rs. 3820 on account of the cash borrowings by the defendants. This item was not seriously pressed by the learned Counsel for the plaintiff/appellant before us, nor has any evidence been produced by the plaintiff in support of his claim. In these circumstances, therefore, the High Court was fully justified in disallowing this claim also. 19. Thus on the evidence led by the plaintiff he has been able to prove only item (a) of the plaint amounting to Rs. 21, 686 being the price of 21 bales of cloth which was sold by the defendants. The defendants have pointed out in their written statement that they had paid a sum of Rs. 10, 000 by cheque to the plaintiff which has not been accounted for and the plaintiff at once agreed to give a credit of this amount by subtracting it from the claim put forward by him in the present suit. This shows that bona fides of the plaintiff. But the manner in which the credit of Rs. 10, 000 has been given by the plaintiff is not legally correct. If the plaintiff has proved his claim to the extent of Rs. 21, 686/11/3, he must first subtract Rs. 10, 000 from this amount before adding interest on his claim. Thus after giving credit of Rs. 10, 000 the claim of the plaintiff would be Rs. 11, 686/11/3 which may be rounded off at Rs. 11, 686. The plaintiff has claimed interest at the rate of 10 annas per cent, per month which appears to us to be too high. We would, therefore, allow the claim for interest to the extent of 6 per cent, per annum for three years. This will come to about Rs. 700 per year. The interest for three years would be Rs. 2100. Thus in view of our finding, the plaintiff is entitled to the item relating to the cost of 21 bales of cloth sold by the defendants to a decree for Rs. 13, 786 which includes interest upto the date of the suit, after giving, credit for the amount of Rs. 10, 000 which he admittedly received from the defendants. Since the amount of Rs. 10, 000 claimed by the defendants has been duly credited by the plaintiff and his claim has been reduced by Rs. 10, 000 the appeal of the defendants is disposed of on full satisfaction. | 1[ds]18. The last item consists of a sum of Rs. 3819/14/6 which may be rounded off to Rs. 3820 on account of the cash borrowings by the defendants. This item was not seriously pressed by the learned Counsel for the plaintiff/appellant before us, nor has any evidence been produced by the plaintiff in support of his claim. In these circumstances, therefore, the High Court was fully justified in disallowing this claim also19. Thus on the evidence led by the plaintiff he has been able to prove only item (a) of the plaint amounting to Rs. 21, 686 being the price of 21 bales of cloth which was sold by the defendants. The defendants have pointed out in their written statement that they had paid a sum of Rs. 10, 000 by cheque to the plaintiff which has not been accounted for and the plaintiff at once agreed to give a credit of this amount by subtracting it from the claim put forward by him in the present suit. This shows that bona fides of the plaintiff. But the manner in which the credit of Rs. 10, 000 has been given by the plaintiff is not legally correct. If the plaintiff has proved his claim to the extent of Rs. 21, 686/11/3, he must first subtract Rs. 10, 000 from this amount before adding interest on his claim. Thus after giving credit of Rs. 10, 000 the claim of the plaintiff would be Rs. 11, 686/11/3 which may be rounded off at Rs. 11, 686. The plaintiff has claimed interest at the rate of 10 annas per cent, per month which appears to us to be too high. We would, therefore, allow the claim for interest to the extent of 6 per cent, per annum for three years. This will come to about Rs. 700 per year. The interest for three years would be Rs. 2100. Thus in view of our finding, the plaintiff is entitled to the item relating to the cost of 21 bales of cloth sold by the defendants to a decree for Rs. 13, 786 which includes interest upto the date of the suit, after giving, credit for the amount of Rs. 10, 000 which he admittedly received from the defendants. Since the amount of Rs. 10, 000 claimed by the defendants has been duly credited by the plaintiff and his claim has been reduced by Rs. 10, 000 the appeal of the defendants is disposed of on full satisfaction13. In the written statement filed by the plaintiff under Order 6, Rule 4 Code of Civil Procedure, the particulars and essential details of the 21 bales of cloth were clearly mentioned in paragraph 1(b). Further more, counsel for the plaintiff gave a statement before the trial Court on September 5, 1952 where also all the essential details regarding the 200 bales of cloth were given. In the statement the counsel for the plaintiff admitted that the plaintiff had received the sale proceeds of 179 bales of cloth and that 21 bales of cloth remained unaccounted for. In the evidence also the plaintiff has sought to prove the very case set up in the plaint as also in the written statement filed later under orders of the Court. We are unable to see any substantial variation between the pleadings of the plaintiff and the evidence led by him at the trial. It isd that the pleadings are loosely drafted in the courts, and the courts should not scrutinise the pleadings with such meticulous care so as to result in genuine claims being defeated on trivial grounds. In our opinion, the finding of the High Court that there was wide gap between the pleadings and the proof is not at all borne out from the record of the present case. | 1 | 4,573 | 708 | ### 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:
The High Court itself observed in its judgment that the original khata and the original rokar Exhibits 30 and 31 respectively relating to Samavat Years 2004 to 2007 had been filed by the plaintiff along with the plaint. The entries contained in the Nakal Bahis were merely reproduction of the entries mentioned in Ext. 30. Therefore, the question of the entries in Nakal Bahis being fabricated or spurious could not arise. The Nakal Bahis merely give further particulars or details of the entries already mentioned in the ledger or the khata. If in these circumstances, therefore, the court exercised its direction under Order 13, Rule 2, C.P.C. to condone the delay and allowed the plaintiff to produce the documents we do not see any error at all which could have been committed by the trial Court. In fact the High Court has completely overlooked the facts mentioned by us and which are contained in the order-sheet of the trial Court. Thus to begin with, the entire approach of the High Court to the case of the plaintiff and the evidence led by him was absolutely wrong. 15. This brings us now to the question as to whether or not the plaintiff has proved that the 21 bales of cloth which were undoubtedly entrusted to the defendants for being deposited in their godown were sold by the defendants and the sale proceeds paid to the plaintiff. Once it is proved that the defendants were in possession of the 21 bales of the cloth which formed part of the 200 bales of cloth, it was the duty of the defendants to account for the same, and excepting a bare denial the defendants have given no other explanation. On the other hand, the plaintiff has produced both oral and documentary evidence to prove that these goods were sold by the defendants and that the sale proceeds were not given to the plaintiff as a result of which he had to make debit entries even at the instance of the defendants. The trial Court considered this matter at great length but the High Court appears to have overlooked this aspect of the case. (The Court considered the plaintiffs evidence.) 16. On a careful consideration of the oral and documentary evidence produced by the plaintiff on this point we are satisfied that the plaintiffs claim with this regard to item (a) of the plaint, namely, the price of 21 bales of cloth which had been sold by the defendants firm and whose sale proceeds were not paid to the plaintiff has been proved to our satisfaction. The High Court was, therefore, wrong in disallowing this claim. The total claim of the plaintiff as regards this item comes to Rs. 21, 686/11/3 which may be rounded off to Rs. 21, 686. 17. We now come to item (b) of the plaint which is the claim of the plaintiff for an amount of Rs. 8824-8-3 which may be rounded off to Rs. 8824. This claim is on account of the price of the goods sent by the plaintiff to the defendants for retail sale and which having been sold the price thereof was not paid to the plaintiff. The trial Court accepted the claim of the plaintiff, but the High Court disallowed this claim after finding that the plaintiff had not been able to prove this part of the claim. After having gone through the evidence we find ourselves in agreement with the finding of the High Court on this point.* * * 18. The last item consists of a sum of Rs. 3819/14/6 which may be rounded off to Rs. 3820 on account of the cash borrowings by the defendants. This item was not seriously pressed by the learned Counsel for the plaintiff/appellant before us, nor has any evidence been produced by the plaintiff in support of his claim. In these circumstances, therefore, the High Court was fully justified in disallowing this claim also. 19. Thus on the evidence led by the plaintiff he has been able to prove only item (a) of the plaint amounting to Rs. 21, 686 being the price of 21 bales of cloth which was sold by the defendants. The defendants have pointed out in their written statement that they had paid a sum of Rs. 10, 000 by cheque to the plaintiff which has not been accounted for and the plaintiff at once agreed to give a credit of this amount by subtracting it from the claim put forward by him in the present suit. This shows that bona fides of the plaintiff. But the manner in which the credit of Rs. 10, 000 has been given by the plaintiff is not legally correct. If the plaintiff has proved his claim to the extent of Rs. 21, 686/11/3, he must first subtract Rs. 10, 000 from this amount before adding interest on his claim. Thus after giving credit of Rs. 10, 000 the claim of the plaintiff would be Rs. 11, 686/11/3 which may be rounded off at Rs. 11, 686. The plaintiff has claimed interest at the rate of 10 annas per cent, per month which appears to us to be too high. We would, therefore, allow the claim for interest to the extent of 6 per cent, per annum for three years. This will come to about Rs. 700 per year. The interest for three years would be Rs. 2100. Thus in view of our finding, the plaintiff is entitled to the item relating to the cost of 21 bales of cloth sold by the defendants to a decree for Rs. 13, 786 which includes interest upto the date of the suit, after giving, credit for the amount of Rs. 10, 000 which he admittedly received from the defendants. Since the amount of Rs. 10, 000 claimed by the defendants has been duly credited by the plaintiff and his claim has been reduced by Rs. 10, 000 the appeal of the defendants is disposed of on full satisfaction.
### Response:
1
### Explanation:
18. The last item consists of a sum of Rs. 3819/14/6 which may be rounded off to Rs. 3820 on account of the cash borrowings by the defendants. This item was not seriously pressed by the learned Counsel for the plaintiff/appellant before us, nor has any evidence been produced by the plaintiff in support of his claim. In these circumstances, therefore, the High Court was fully justified in disallowing this claim also19. Thus on the evidence led by the plaintiff he has been able to prove only item (a) of the plaint amounting to Rs. 21, 686 being the price of 21 bales of cloth which was sold by the defendants. The defendants have pointed out in their written statement that they had paid a sum of Rs. 10, 000 by cheque to the plaintiff which has not been accounted for and the plaintiff at once agreed to give a credit of this amount by subtracting it from the claim put forward by him in the present suit. This shows that bona fides of the plaintiff. But the manner in which the credit of Rs. 10, 000 has been given by the plaintiff is not legally correct. If the plaintiff has proved his claim to the extent of Rs. 21, 686/11/3, he must first subtract Rs. 10, 000 from this amount before adding interest on his claim. Thus after giving credit of Rs. 10, 000 the claim of the plaintiff would be Rs. 11, 686/11/3 which may be rounded off at Rs. 11, 686. The plaintiff has claimed interest at the rate of 10 annas per cent, per month which appears to us to be too high. We would, therefore, allow the claim for interest to the extent of 6 per cent, per annum for three years. This will come to about Rs. 700 per year. The interest for three years would be Rs. 2100. Thus in view of our finding, the plaintiff is entitled to the item relating to the cost of 21 bales of cloth sold by the defendants to a decree for Rs. 13, 786 which includes interest upto the date of the suit, after giving, credit for the amount of Rs. 10, 000 which he admittedly received from the defendants. Since the amount of Rs. 10, 000 claimed by the defendants has been duly credited by the plaintiff and his claim has been reduced by Rs. 10, 000 the appeal of the defendants is disposed of on full satisfaction13. In the written statement filed by the plaintiff under Order 6, Rule 4 Code of Civil Procedure, the particulars and essential details of the 21 bales of cloth were clearly mentioned in paragraph 1(b). Further more, counsel for the plaintiff gave a statement before the trial Court on September 5, 1952 where also all the essential details regarding the 200 bales of cloth were given. In the statement the counsel for the plaintiff admitted that the plaintiff had received the sale proceeds of 179 bales of cloth and that 21 bales of cloth remained unaccounted for. In the evidence also the plaintiff has sought to prove the very case set up in the plaint as also in the written statement filed later under orders of the Court. We are unable to see any substantial variation between the pleadings of the plaintiff and the evidence led by him at the trial. It isd that the pleadings are loosely drafted in the courts, and the courts should not scrutinise the pleadings with such meticulous care so as to result in genuine claims being defeated on trivial grounds. In our opinion, the finding of the High Court that there was wide gap between the pleadings and the proof is not at all borne out from the record of the present case.
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GEETA GUPTA Vs. RAMESH CHANDRA DWIVEDI & ORS | (1) of Section 12 incorporates the concept of deemed vacancy of the building in certain cases. Under clause (b) of sub-section (1) of Section 12, a tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if he has allowed it to be occupied by any person who is not a member of his family. Sub-section (2) of Section 12 lays down that in case of non-residential buildings, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner, the tenant shall be deemed to have ceased to occupy the building. Sub-Section (4) of Section 12 of the said Act provides that any building or a part of which landlord or tenant has ceased to occupy within the meaning of sub-sections (1) or (2) of Section 12 shall be deemed to be vacant. 10. Under clause (a) of sub-section (1) of Section 16 of the said Act, the District Magistrate is empowered to require any landlord to let any building which has fallen vacant to any person specified in the order. 11. Section 14 of the said Act is material which is thus: 14. Regularisation or occupation of existing tenants.-[Notwithstanding anything contained in this Act or any other law for the time being in force, any licensee (within the meaning of Section 2- A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, not being a person against whom any suit or proceeding for eviction is pending before any court or authority on the date of such commencement shall be deemed to be an authorised licensee or tenant of such building]. Under Section 14, a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment Act), 1976 shall be deemed to an authorised tenant. The date of commencement of the Amendment Act is 5th July, 1976. 12. The first respondent relied upon the agreement dated 15th November, 1975 purportedly executed by the said Dhruv Narayan Tripathi claiming to be the power of attorney holder and manager of the original owners. The first respondent is the second party to the said Agreement on whom tenancy in respect of the disputed premises was conferred. The finding of fact recorded by the Addl. City Magistrate is that the original owners never denied that the said Dhruv Narayan Tripathi was their attorney or manager and that the original owners neither served any notice nor filed a suit for eviction. In the counter, the first respondent has relied upon the said agreement at Annexure R-4 in paragraph 5. In the rejoinder, the appellant alleged that the said document was fabricated. However, the petitioner has not produced on record anything to show that from 1975 to 1994, the original owners raised any objection to the induction of the first respondent as a tenant of the disputed premises in the year 1975. Thus, the first respondent was inducted in possession as a tenant prior to 5th July, 1976. The finding recorded by the Addl. City Magistrate is that to the presence of the first respondent, the predecessors-in-title, of the appellant had never raised any objection right from the year 1975. Therefore, the Addl. City Magistrate concluded that in absence of the evidence of predecessors-in-title of the appellant, it is very difficult to accept that right from the year 1975, the first respondent continued to be in possession without the consent of the original owners. There is nothing wrong about this inference drawn by the Addl. Magistrate that the first respondent was inducted with the consent of the predecessors-in-title of the appellant. We find no error in the said view taken by the Addl. City Magistrate and confirmed by the High Court. 13. As the first respondent was a tenant in possession on 5 th July, 1976 with the consent of the original owners, he shall be deemed to be a tenant by virtue of Section 14 of the said Act. 14. Therefore, there is no reason to find fault with the Order of the Addl. City Magistrate. By virtue of Section 14, the first respondent gets the protection as a tenant under the said Act. Therefore, if the appellant wants the first respondent to be evicted, she will have to take recourse to section 20 of the said Act. Depending upon the circumstances, she has also an option to take recourse to section 21 of the said Act. 15. We have carefully perused the decisions relied upon by the appellant. The decision in the case of Achal Misra (supra) holds that an order notifying vacancy under section 12 of the said Act can be challenged by filing a writ petition or it can be challenged after an order of allotment is made by adopting a remedy under section 18 of the said Act. Even the decision in the case of Harish Tandon (supra) has no bearing on the controversy in this appeal. Lastly, the decision in the case of Ram Murti Devi (supra) does not deal with the issue involved. It deals with the issue of unlawful subletting. None of these decisions have any application to the facts of this case. 16. Though there is no merit in the appeal, it will be necessary to ensure that the first respondent regularly pays rent in respect of the disputed premises. In the objections filed by the first respondent, he has specifically taken a stand that the first respondent has filed Misc. Case No. 284/70/04 in the Court of Civil Judge, (Junior Division) at Kanpur Nagar under sub-section (1) of Section 30 of the said Act. The learned counsel appearing for first respondent claimed that the entire amount of rent has been deposited in the said case. | 0[ds]9. We have carefully considered the submissions. We have perused the material on record, as well as the provisions of the said Act. Sub-section (1) of Section 12 incorporates the concept of deemed vacancy of the building in certain cases. Under clause (b) of sub-section (1) of Section 12, a tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if he has allowed it to be occupied by any person who is not a member of his family. Sub-section (2) of Section 12 lays down that in case of non-residential buildings, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner, the tenant shall be deemed to have ceased to occupy the building. Sub-Section (4) of Section 12 of the said Act provides that any building or a part of which landlord or tenant has ceased to occupy within the meaning of sub-sections (1) or (2) of Section 12 shall be deemed to be vacant.However, the petitioner has not produced on record anything to show that from 1975 to 1994, the original owners raised any objection to the induction of the first respondent as a tenant of the disputed premises in the year 1975. Thus, the first respondent was inducted in possession as a tenant prior to 5th July, 1976. The finding recorded by the Addl. City Magistrate is that to the presence of the first respondent, the predecessors-in-title, of the appellant had never raised any objection right from the year 1975. Therefore, the Addl. City Magistrate concluded that in absence of the evidence of predecessors-in-title of the appellant, it is very difficult to accept that right from the year 1975, the first respondent continued to be in possession without the consent of the original owners. There is nothing wrong about this inference drawn by the Addl. Magistrate that the first respondent was inducted with the consent of the predecessors-in-title of the appellant. We find no error in the said view taken by the Addl. City Magistrate and confirmed by the High Court.13. As the first respondent was a tenant in possession on 5 th July, 1976 with the consent of the original owners, he shall be deemed to be a tenant by virtue of Section 14 of the said Act.14. Therefore, there is no reason to find fault with the Order of the Addl. City Magistrate. By virtue of Section 14, the first respondent gets the protection as a tenant under the said Act. Therefore, if the appellant wants the first respondent to be evicted, she will have to take recourse to section 20 of the said Act. Depending upon the circumstances, she has also an option to take recourse to section 21 of the said Act.15. We have carefully perused the decisions relied upon by the appellant. The decision in the case of Achal Misra (supra) holds that an order notifying vacancy under section 12 of the said Act can be challenged by filing a writ petition or it can be challenged after an order of allotment is made by adopting a remedy under section 18 of the said Act. Even the decision in the case of Harish Tandon (supra) has no bearing on the controversy in this appeal. Lastly, the decision in the case of Ram Murti Devi (supra) does not deal with the issue involved. It deals with the issue of unlawful subletting. None of these decisions have any application to the facts of this case.16. Though there is no merit in the appeal, it will be necessary to ensure that the first respondent regularly pays rent in respect of the disputed premises. | 0 | 2,122 | 694 | ### 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:
(1) of Section 12 incorporates the concept of deemed vacancy of the building in certain cases. Under clause (b) of sub-section (1) of Section 12, a tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if he has allowed it to be occupied by any person who is not a member of his family. Sub-section (2) of Section 12 lays down that in case of non-residential buildings, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner, the tenant shall be deemed to have ceased to occupy the building. Sub-Section (4) of Section 12 of the said Act provides that any building or a part of which landlord or tenant has ceased to occupy within the meaning of sub-sections (1) or (2) of Section 12 shall be deemed to be vacant. 10. Under clause (a) of sub-section (1) of Section 16 of the said Act, the District Magistrate is empowered to require any landlord to let any building which has fallen vacant to any person specified in the order. 11. Section 14 of the said Act is material which is thus: 14. Regularisation or occupation of existing tenants.-[Notwithstanding anything contained in this Act or any other law for the time being in force, any licensee (within the meaning of Section 2- A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, not being a person against whom any suit or proceeding for eviction is pending before any court or authority on the date of such commencement shall be deemed to be an authorised licensee or tenant of such building]. Under Section 14, a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment Act), 1976 shall be deemed to an authorised tenant. The date of commencement of the Amendment Act is 5th July, 1976. 12. The first respondent relied upon the agreement dated 15th November, 1975 purportedly executed by the said Dhruv Narayan Tripathi claiming to be the power of attorney holder and manager of the original owners. The first respondent is the second party to the said Agreement on whom tenancy in respect of the disputed premises was conferred. The finding of fact recorded by the Addl. City Magistrate is that the original owners never denied that the said Dhruv Narayan Tripathi was their attorney or manager and that the original owners neither served any notice nor filed a suit for eviction. In the counter, the first respondent has relied upon the said agreement at Annexure R-4 in paragraph 5. In the rejoinder, the appellant alleged that the said document was fabricated. However, the petitioner has not produced on record anything to show that from 1975 to 1994, the original owners raised any objection to the induction of the first respondent as a tenant of the disputed premises in the year 1975. Thus, the first respondent was inducted in possession as a tenant prior to 5th July, 1976. The finding recorded by the Addl. City Magistrate is that to the presence of the first respondent, the predecessors-in-title, of the appellant had never raised any objection right from the year 1975. Therefore, the Addl. City Magistrate concluded that in absence of the evidence of predecessors-in-title of the appellant, it is very difficult to accept that right from the year 1975, the first respondent continued to be in possession without the consent of the original owners. There is nothing wrong about this inference drawn by the Addl. Magistrate that the first respondent was inducted with the consent of the predecessors-in-title of the appellant. We find no error in the said view taken by the Addl. City Magistrate and confirmed by the High Court. 13. As the first respondent was a tenant in possession on 5 th July, 1976 with the consent of the original owners, he shall be deemed to be a tenant by virtue of Section 14 of the said Act. 14. Therefore, there is no reason to find fault with the Order of the Addl. City Magistrate. By virtue of Section 14, the first respondent gets the protection as a tenant under the said Act. Therefore, if the appellant wants the first respondent to be evicted, she will have to take recourse to section 20 of the said Act. Depending upon the circumstances, she has also an option to take recourse to section 21 of the said Act. 15. We have carefully perused the decisions relied upon by the appellant. The decision in the case of Achal Misra (supra) holds that an order notifying vacancy under section 12 of the said Act can be challenged by filing a writ petition or it can be challenged after an order of allotment is made by adopting a remedy under section 18 of the said Act. Even the decision in the case of Harish Tandon (supra) has no bearing on the controversy in this appeal. Lastly, the decision in the case of Ram Murti Devi (supra) does not deal with the issue involved. It deals with the issue of unlawful subletting. None of these decisions have any application to the facts of this case. 16. Though there is no merit in the appeal, it will be necessary to ensure that the first respondent regularly pays rent in respect of the disputed premises. In the objections filed by the first respondent, he has specifically taken a stand that the first respondent has filed Misc. Case No. 284/70/04 in the Court of Civil Judge, (Junior Division) at Kanpur Nagar under sub-section (1) of Section 30 of the said Act. The learned counsel appearing for first respondent claimed that the entire amount of rent has been deposited in the said case.
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0
### Explanation:
9. We have carefully considered the submissions. We have perused the material on record, as well as the provisions of the said Act. Sub-section (1) of Section 12 incorporates the concept of deemed vacancy of the building in certain cases. Under clause (b) of sub-section (1) of Section 12, a tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if he has allowed it to be occupied by any person who is not a member of his family. Sub-section (2) of Section 12 lays down that in case of non-residential buildings, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner, the tenant shall be deemed to have ceased to occupy the building. Sub-Section (4) of Section 12 of the said Act provides that any building or a part of which landlord or tenant has ceased to occupy within the meaning of sub-sections (1) or (2) of Section 12 shall be deemed to be vacant.However, the petitioner has not produced on record anything to show that from 1975 to 1994, the original owners raised any objection to the induction of the first respondent as a tenant of the disputed premises in the year 1975. Thus, the first respondent was inducted in possession as a tenant prior to 5th July, 1976. The finding recorded by the Addl. City Magistrate is that to the presence of the first respondent, the predecessors-in-title, of the appellant had never raised any objection right from the year 1975. Therefore, the Addl. City Magistrate concluded that in absence of the evidence of predecessors-in-title of the appellant, it is very difficult to accept that right from the year 1975, the first respondent continued to be in possession without the consent of the original owners. There is nothing wrong about this inference drawn by the Addl. Magistrate that the first respondent was inducted with the consent of the predecessors-in-title of the appellant. We find no error in the said view taken by the Addl. City Magistrate and confirmed by the High Court.13. As the first respondent was a tenant in possession on 5 th July, 1976 with the consent of the original owners, he shall be deemed to be a tenant by virtue of Section 14 of the said Act.14. Therefore, there is no reason to find fault with the Order of the Addl. City Magistrate. By virtue of Section 14, the first respondent gets the protection as a tenant under the said Act. Therefore, if the appellant wants the first respondent to be evicted, she will have to take recourse to section 20 of the said Act. Depending upon the circumstances, she has also an option to take recourse to section 21 of the said Act.15. We have carefully perused the decisions relied upon by the appellant. The decision in the case of Achal Misra (supra) holds that an order notifying vacancy under section 12 of the said Act can be challenged by filing a writ petition or it can be challenged after an order of allotment is made by adopting a remedy under section 18 of the said Act. Even the decision in the case of Harish Tandon (supra) has no bearing on the controversy in this appeal. Lastly, the decision in the case of Ram Murti Devi (supra) does not deal with the issue involved. It deals with the issue of unlawful subletting. None of these decisions have any application to the facts of this case.16. Though there is no merit in the appeal, it will be necessary to ensure that the first respondent regularly pays rent in respect of the disputed premises.
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Chhattisgarh State Industrial Development Corporation Ltd Vs. M/S Amar Infrastructure Ltd | of manipulation in the technical evaluation sheet which has been placed on record by the CSIDC in the form of document R-4/3 and 5/3 and by M/s. Amar Infrastructure Ltd. as Annexure P-4 in the High Court.34. The Cyber Crime Cell has observed that some modification was made on 4th July, 2016, in the technical evaluation bid document P-4, a copy of which was filed by the respondent i.e. M/s. Amar Infrastructure Limited in the month of April. It was also not reported what change was made in P-4. There was no such manipulation reported in the document of technical evaluation filed by the CSIDC in the High Court. We have seen the stand of CSIDC in its reply to the Writ Application preferred by M/s B.B. Verma which was dismissed by the High Court after looking into same technical evaluation report. The similar stand had been taken by the CSIDC and the very same document of technical evaluation had been placed on record in the aforesaid case as is apparent from the pleadings to which our attention has been drawn by the learned Attorney General. The document relied upon by the CSIDC had been placed on record of said case within a week of finalisation of the financial bid. Immediate filing of the same and taking the stand to the similar effect as has been taken in this matter also vouch for the correctness of document which has been filed by the CSIDC and there is no manipulation in it. As per report of the cyber crime cell also there is no manipulation in the document which has been relied upon by the CSIDC. The question of manipulation as to Hot Mix Plant is of no consequence as it was not a mandatory criteria for opening of financial bid. The ownership or otherwise of the hot mix plant was not at all necessary and the plant was not required as mandatory one for the purpose of pre-qualification stage for opening of financial bid. It was only in the list of approved plant and equipments to be used under the certification of the Engineer-in-charge. It appears that the document P-4 which had been filed by M/s. Amar Infrastructure Ltd. contained the evaluation sheet but it was not as per requirement of aforesaid various clauses necessary for pre-qualification stage and non-submission of the information as contended by M/s. Amar Infrastructure Ltd. could not have disqualified M/s. Arcons Infrastructure and Constructions Pvt. Ltd. Thus, what was the necessary requirement as per criteria for opening of the financial evaluation had been rightly placed before the Technical Evaluation Committee on 3.3.2016. We have perused the original Minutes and the technical evaluation document filed by CSIDC which were placed before Technical Evaluation Committee, and was signed by the Executive Engineer and had been considered by the Technical Evaluation Committee. The minutes of the Technical Evaluation Committee had also been signed by the aforesaid three officers. Apart from that in the minutes of Technical Evaluation Committee meeting dated 3.3.2016, details of qualifications have been mentioned and that accords with the document of evaluation sheet which has been relied upon by the CSIDC.35. In our opinion, as the hot mix plant was not a mandatory requirement so as to open the financial bid, we decline to go into the submission raised on behalf of the appellants that M/s. Amar Infrastructure Limited has not disclosed how and when and from whom and by which process it obtained the document P-4 which is not signed by anybody as the fact remains that the document which is filed by the respondent also existed in the computer of the CSIDC. However, it looms in insignificance owing to the conclusions to which we have reached with respect to the Hot Mix Plant. May be that this document P-4 was also prepared by somebody in the CSIDC but it was not initialed or signed by anybody. It depicted the position of entire tender of L-2 but what was mandatory requirement for pre-qualification stage and technical evaluation was correctly placed before the Technical Evaluation Committee in the form of document R-4/3 and R-5/3. In view of the aforesaid, we are of the opinion that the report of the Cyber Crime Cell is of no consequence with respect to pre-qualification criteria and opening of financial bids, since it is not disputed that successful tenderer L-1 fulfilled all conditions and had Hot Mix Plant also.36. There was no manipulation in the mandatory requirements and may be that P-4 was prepared but that was of no consequence as deficiency of Hot Mix Plant, even if placed before Committee, would not have tilted the balance in favour of the respondent M/s. Amar Infrastructure Limited. The Committee on that basis could not have disqualified the L-2 tenderer.37. Coming to the submission raised by the learned counsel for the respondent that M/s. Anil Buildcon (I) Pvt. Ltd. was disqualified for not possessing concrete paver as such L-2 tenderer M/s. Arcons Infrastructure Pvt. Ltd. also ought to have been disqualified for deficiency of Hot Mix Plant, we are unable to accept the submission as concrete paver was mentioned in the list of mandatory plant and equipment for pre-qualification stage so as to open financial bid. Thus, this submission is found to be baseless. M/s Anil Buildcon (I) Pvt. Ltd. was rightly disqualified.38. We also find that M/s. Amar Infrastructure Ltd. itself was disqualified and it had not questioned the qualification of the successful bidder but that of L-2 bidder - M/s. Arcons Infrastructure Pvt. Ltd. on ground that it was not qualified and its financial bid had been illegally opened. It was purely a fight between the rival tenderers involving no element of public interest. It was the respondent who was trying to cater to its business interest to ensure retendering by seeking disqualification of L-2 tenderer M/s. Arcons Infrastructure Pvt. Ltd. to whom contract had not been given. The Court has to be loath in such matter to make interference. | 1[ds]24. It is apparent from the pre-qualification criteria that for acquiring eligibility the intended tenderer has to meet the financial criteria as specified in Clause 2.1, technical criteria as per Clause 2.2(A) and the construction experience in key activities as provided in Clause 2.2 of doing a contract of requisite nature. Clause 2.2(B) required similar construction work should have been completed satisfactorily within five years, costing not less than INR 32.52 crores or two similar works of INR 22.20 crores each and Clause 2.2(C) provided with respect to the construction experience in key activities requirement for the above or other contracts executed during the period stipulated in clause 2.1 above, a minimum construction experience in the key activities as provided in form Schedule D Section I(v) relating to construction experience.Considering the aforesaid various clauses, we are of the considered opinion that both the bidders L-1 and L-2 i.e. M/s. Raipur Construction Pvt. Ltd. and M/s. Arcons Infrastructure Pvt. Ltd. were technically qualified for opening of their financial bids. The opinion expressed by the High Court that L-2 was made to be qualified in spite of the fact that it was not having Hot Mix Plant, thus, cannot be accepted as available ground to disqualify L-2 tenderer. The relevant clauses of the tender document were not placed for consideration before the High Court as mentioned by the High Court and at last moment the Hot Mix Plant inclusion in Schedule D Section V was indicated to it by the disqualified contractor. In our opinion, Hot Mix Plant was not a mandatory requirement so as to open the financial bid. Thus, the financial bids of the two tenderers who succeeded at the pre-qualification stage had been rightly opened and considered. In our opinion, M/s. Raipur Construction was not favoured by qualifying the disqualified tenderer - M/s. Arcons Infrastructure Pvt Ltd to give the contract to it in surreptitious method and manner as observed by the High Court. M/s. Arcons Infrastructure was, in fact, rightly qualified.32. This Court in Tejas Constructions and Infrastructure Pvt. Ltd. v. Municipal Council, Sendhwa and Anr. (2012) 6 SCC 464 has laid down that when the work is 60 per cent complete, Court should be slow to interfere as retendering would delay the project. In the absence of malafide or arbitrariness which is not made out in the instant case as 50 per cent of the work had been completed when the order was passed by the High Court, hence, no interference was warranted in the present case.33. Now, we advert to the question of manipulation in the technical evaluation sheet which has been placed on record by the CSIDC in the form of document R-4/3 and 5/3 and by M/s. Amar Infrastructure Ltd. as Annexure P-4 in the High Court.34. The Cyber Crime Cell has observed that some modification was made on 4th July, 2016, in the technical evaluation bid document P-4, a copy of which was filed by the respondent i.e. M/s. Amar Infrastructure Limited in the month of April. It was also not reported what change was made in P-4. There was no such manipulation reported in the document of technical evaluation filed by the CSIDC in the High Court. We have seen the stand of CSIDC in its reply to the Writ Application preferred by M/s B.B. Verma which was dismissed by the High Court after looking into same technical evaluation report. The similar stand had been taken by the CSIDC and the very same document of technical evaluation had been placed on record in the aforesaid case as is apparent from the pleadings to which our attention has been drawn by the learned Attorney General. The document relied upon by the CSIDC had been placed on record of said case within a week of finalisation of the financial bid. Immediate filing of the same and taking the stand to the similar effect as has been taken in this matter also vouch for the correctness of document which has been filed by the CSIDC and there is no manipulation in it. As per report of the cyber crime cell also there is no manipulation in the document which has been relied upon by the CSIDC. The question of manipulation as to Hot Mix Plant is of no consequence as it was not a mandatory criteria for opening of financial bid. The ownership or otherwise of the hot mix plant was not at all necessary and the plant was not required as mandatory one for the purpose of pre-qualification stage for opening of financial bid. It was only in the list of approved plant and equipments to be used under the certification of the Engineer-in-charge. It appears that the document P-4 which had been filed by M/s. Amar Infrastructure Ltd. contained the evaluation sheet but it was not as per requirement of aforesaid various clauses necessary for pre-qualification stage and non-submission of the information as contended by M/s. Amar Infrastructure Ltd. could not have disqualified M/s. Arcons Infrastructure and Constructions Pvt. Ltd. Thus, what was the necessary requirement as per criteria for opening of the financial evaluation had been rightly placed before the Technical Evaluation Committee on 3.3.2016. We have perused the original Minutes and the technical evaluation document filed by CSIDC which were placed before Technical Evaluation Committee, and was signed by the Executive Engineer and had been considered by the Technical Evaluation Committee. The minutes of the Technical Evaluation Committee had also been signed by the aforesaid three officers. Apart from that in the minutes of Technical Evaluation Committee meeting dated 3.3.2016, details of qualifications have been mentioned and that accords with the document of evaluation sheet which has been relied upon by the CSIDC.35. In our opinion, as the hot mix plant was not a mandatory requirement so as to open the financial bid, we decline to go into the submission raised on behalf of the appellants that M/s. Amar Infrastructure Limited has not disclosed how and when and from whom and by which process it obtained the document P-4 which is not signed by anybody as the fact remains that the document which is filed by the respondent also existed in the computer of the CSIDC. However, it looms in insignificance owing to the conclusions to which we have reached with respect to the Hot Mix Plant. May be that this document P-4 was also prepared by somebody in the CSIDC but it was not initialed or signed by anybody. It depicted the position of entire tender of L-2 but what was mandatory requirement for pre-qualification stage and technical evaluation was correctly placed before the Technical Evaluation Committee in the form of document R-4/3 and R-5/3. In view of the aforesaid, we are of the opinion that the report of the Cyber Crime Cell is of no consequence with respect to pre-qualification criteria and opening of financial bids, since it is not disputed that successful tenderer L-1 fulfilled all conditions and had Hot Mix Plant also.36. There was no manipulation in the mandatory requirements and may be that P-4 was prepared but that was of no consequence as deficiency of Hot Mix Plant, even if placed before Committee, would not have tilted the balance in favour of the respondent M/s. Amar Infrastructure Limited. The Committee on that basis could not have disqualified the L-2 tenderer.37. Coming to the submission raised by the learned counsel for the respondent that M/s. Anil Buildcon (I) Pvt. Ltd. was disqualified for not possessing concrete paver as such L-2 tenderer M/s. Arcons Infrastructure Pvt. Ltd. also ought to have been disqualified for deficiency of Hot Mix Plant, we are unable to accept the submission as concrete paver was mentioned in the list of mandatory plant and equipment for pre-qualification stage so as to open financial bid. Thus, this submission is found to be baseless. M/s Anil Buildcon (I) Pvt. Ltd. was rightly disqualified.38. We also find that M/s. Amar Infrastructure Ltd. itself was disqualified and it had not questioned the qualification of the successful bidder but that of L-2 bidder - M/s. Arcons Infrastructure Pvt. Ltd. on ground that it was not qualified and its financial bid had been illegally opened. It was purely a fight between the rival tenderers involving no element of public interest. It was the respondent who was trying to cater to its business interest to ensure retendering by seeking disqualification of L-2 tenderer M/s. Arcons Infrastructure Pvt. Ltd. to whom contract had not been given. The Court has to be loath in such matter to make interference. | 1 | 6,480 | 1,552 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
of manipulation in the technical evaluation sheet which has been placed on record by the CSIDC in the form of document R-4/3 and 5/3 and by M/s. Amar Infrastructure Ltd. as Annexure P-4 in the High Court.34. The Cyber Crime Cell has observed that some modification was made on 4th July, 2016, in the technical evaluation bid document P-4, a copy of which was filed by the respondent i.e. M/s. Amar Infrastructure Limited in the month of April. It was also not reported what change was made in P-4. There was no such manipulation reported in the document of technical evaluation filed by the CSIDC in the High Court. We have seen the stand of CSIDC in its reply to the Writ Application preferred by M/s B.B. Verma which was dismissed by the High Court after looking into same technical evaluation report. The similar stand had been taken by the CSIDC and the very same document of technical evaluation had been placed on record in the aforesaid case as is apparent from the pleadings to which our attention has been drawn by the learned Attorney General. The document relied upon by the CSIDC had been placed on record of said case within a week of finalisation of the financial bid. Immediate filing of the same and taking the stand to the similar effect as has been taken in this matter also vouch for the correctness of document which has been filed by the CSIDC and there is no manipulation in it. As per report of the cyber crime cell also there is no manipulation in the document which has been relied upon by the CSIDC. The question of manipulation as to Hot Mix Plant is of no consequence as it was not a mandatory criteria for opening of financial bid. The ownership or otherwise of the hot mix plant was not at all necessary and the plant was not required as mandatory one for the purpose of pre-qualification stage for opening of financial bid. It was only in the list of approved plant and equipments to be used under the certification of the Engineer-in-charge. It appears that the document P-4 which had been filed by M/s. Amar Infrastructure Ltd. contained the evaluation sheet but it was not as per requirement of aforesaid various clauses necessary for pre-qualification stage and non-submission of the information as contended by M/s. Amar Infrastructure Ltd. could not have disqualified M/s. Arcons Infrastructure and Constructions Pvt. Ltd. Thus, what was the necessary requirement as per criteria for opening of the financial evaluation had been rightly placed before the Technical Evaluation Committee on 3.3.2016. We have perused the original Minutes and the technical evaluation document filed by CSIDC which were placed before Technical Evaluation Committee, and was signed by the Executive Engineer and had been considered by the Technical Evaluation Committee. The minutes of the Technical Evaluation Committee had also been signed by the aforesaid three officers. Apart from that in the minutes of Technical Evaluation Committee meeting dated 3.3.2016, details of qualifications have been mentioned and that accords with the document of evaluation sheet which has been relied upon by the CSIDC.35. In our opinion, as the hot mix plant was not a mandatory requirement so as to open the financial bid, we decline to go into the submission raised on behalf of the appellants that M/s. Amar Infrastructure Limited has not disclosed how and when and from whom and by which process it obtained the document P-4 which is not signed by anybody as the fact remains that the document which is filed by the respondent also existed in the computer of the CSIDC. However, it looms in insignificance owing to the conclusions to which we have reached with respect to the Hot Mix Plant. May be that this document P-4 was also prepared by somebody in the CSIDC but it was not initialed or signed by anybody. It depicted the position of entire tender of L-2 but what was mandatory requirement for pre-qualification stage and technical evaluation was correctly placed before the Technical Evaluation Committee in the form of document R-4/3 and R-5/3. In view of the aforesaid, we are of the opinion that the report of the Cyber Crime Cell is of no consequence with respect to pre-qualification criteria and opening of financial bids, since it is not disputed that successful tenderer L-1 fulfilled all conditions and had Hot Mix Plant also.36. There was no manipulation in the mandatory requirements and may be that P-4 was prepared but that was of no consequence as deficiency of Hot Mix Plant, even if placed before Committee, would not have tilted the balance in favour of the respondent M/s. Amar Infrastructure Limited. The Committee on that basis could not have disqualified the L-2 tenderer.37. Coming to the submission raised by the learned counsel for the respondent that M/s. Anil Buildcon (I) Pvt. Ltd. was disqualified for not possessing concrete paver as such L-2 tenderer M/s. Arcons Infrastructure Pvt. Ltd. also ought to have been disqualified for deficiency of Hot Mix Plant, we are unable to accept the submission as concrete paver was mentioned in the list of mandatory plant and equipment for pre-qualification stage so as to open financial bid. Thus, this submission is found to be baseless. M/s Anil Buildcon (I) Pvt. Ltd. was rightly disqualified.38. We also find that M/s. Amar Infrastructure Ltd. itself was disqualified and it had not questioned the qualification of the successful bidder but that of L-2 bidder - M/s. Arcons Infrastructure Pvt. Ltd. on ground that it was not qualified and its financial bid had been illegally opened. It was purely a fight between the rival tenderers involving no element of public interest. It was the respondent who was trying to cater to its business interest to ensure retendering by seeking disqualification of L-2 tenderer M/s. Arcons Infrastructure Pvt. Ltd. to whom contract had not been given. The Court has to be loath in such matter to make interference.
### Response:
1
### Explanation:
of manipulation in the technical evaluation sheet which has been placed on record by the CSIDC in the form of document R-4/3 and 5/3 and by M/s. Amar Infrastructure Ltd. as Annexure P-4 in the High Court.34. The Cyber Crime Cell has observed that some modification was made on 4th July, 2016, in the technical evaluation bid document P-4, a copy of which was filed by the respondent i.e. M/s. Amar Infrastructure Limited in the month of April. It was also not reported what change was made in P-4. There was no such manipulation reported in the document of technical evaluation filed by the CSIDC in the High Court. We have seen the stand of CSIDC in its reply to the Writ Application preferred by M/s B.B. Verma which was dismissed by the High Court after looking into same technical evaluation report. The similar stand had been taken by the CSIDC and the very same document of technical evaluation had been placed on record in the aforesaid case as is apparent from the pleadings to which our attention has been drawn by the learned Attorney General. The document relied upon by the CSIDC had been placed on record of said case within a week of finalisation of the financial bid. Immediate filing of the same and taking the stand to the similar effect as has been taken in this matter also vouch for the correctness of document which has been filed by the CSIDC and there is no manipulation in it. As per report of the cyber crime cell also there is no manipulation in the document which has been relied upon by the CSIDC. The question of manipulation as to Hot Mix Plant is of no consequence as it was not a mandatory criteria for opening of financial bid. The ownership or otherwise of the hot mix plant was not at all necessary and the plant was not required as mandatory one for the purpose of pre-qualification stage for opening of financial bid. It was only in the list of approved plant and equipments to be used under the certification of the Engineer-in-charge. It appears that the document P-4 which had been filed by M/s. Amar Infrastructure Ltd. contained the evaluation sheet but it was not as per requirement of aforesaid various clauses necessary for pre-qualification stage and non-submission of the information as contended by M/s. Amar Infrastructure Ltd. could not have disqualified M/s. Arcons Infrastructure and Constructions Pvt. Ltd. Thus, what was the necessary requirement as per criteria for opening of the financial evaluation had been rightly placed before the Technical Evaluation Committee on 3.3.2016. We have perused the original Minutes and the technical evaluation document filed by CSIDC which were placed before Technical Evaluation Committee, and was signed by the Executive Engineer and had been considered by the Technical Evaluation Committee. The minutes of the Technical Evaluation Committee had also been signed by the aforesaid three officers. Apart from that in the minutes of Technical Evaluation Committee meeting dated 3.3.2016, details of qualifications have been mentioned and that accords with the document of evaluation sheet which has been relied upon by the CSIDC.35. In our opinion, as the hot mix plant was not a mandatory requirement so as to open the financial bid, we decline to go into the submission raised on behalf of the appellants that M/s. Amar Infrastructure Limited has not disclosed how and when and from whom and by which process it obtained the document P-4 which is not signed by anybody as the fact remains that the document which is filed by the respondent also existed in the computer of the CSIDC. However, it looms in insignificance owing to the conclusions to which we have reached with respect to the Hot Mix Plant. May be that this document P-4 was also prepared by somebody in the CSIDC but it was not initialed or signed by anybody. It depicted the position of entire tender of L-2 but what was mandatory requirement for pre-qualification stage and technical evaluation was correctly placed before the Technical Evaluation Committee in the form of document R-4/3 and R-5/3. In view of the aforesaid, we are of the opinion that the report of the Cyber Crime Cell is of no consequence with respect to pre-qualification criteria and opening of financial bids, since it is not disputed that successful tenderer L-1 fulfilled all conditions and had Hot Mix Plant also.36. There was no manipulation in the mandatory requirements and may be that P-4 was prepared but that was of no consequence as deficiency of Hot Mix Plant, even if placed before Committee, would not have tilted the balance in favour of the respondent M/s. Amar Infrastructure Limited. The Committee on that basis could not have disqualified the L-2 tenderer.37. Coming to the submission raised by the learned counsel for the respondent that M/s. Anil Buildcon (I) Pvt. Ltd. was disqualified for not possessing concrete paver as such L-2 tenderer M/s. Arcons Infrastructure Pvt. Ltd. also ought to have been disqualified for deficiency of Hot Mix Plant, we are unable to accept the submission as concrete paver was mentioned in the list of mandatory plant and equipment for pre-qualification stage so as to open financial bid. Thus, this submission is found to be baseless. M/s Anil Buildcon (I) Pvt. Ltd. was rightly disqualified.38. We also find that M/s. Amar Infrastructure Ltd. itself was disqualified and it had not questioned the qualification of the successful bidder but that of L-2 bidder - M/s. Arcons Infrastructure Pvt. Ltd. on ground that it was not qualified and its financial bid had been illegally opened. It was purely a fight between the rival tenderers involving no element of public interest. It was the respondent who was trying to cater to its business interest to ensure retendering by seeking disqualification of L-2 tenderer M/s. Arcons Infrastructure Pvt. Ltd. to whom contract had not been given. The Court has to be loath in such matter to make interference.
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Ganga Retreat & Towers Ltd. Vs. State Of Rajasthan | the contents thereof it was argued that in the case of former the transaction is void while in the case of latter it is merely voidable. It was also urged that the appellants could avoid the transaction at any time. In our view, this judgment is of no assistance to the appellants as on facts we have found that the default committed by the respondent-State , if any, stood condoned by the appellants. 47. In either case, we find that the appellants are not entitled to any relief in the realm of the law of contracts. In spite of having acquired knowledge of the true facts assuming that there was any mistake or misrepresentation to begin with and having learnt that the title which was sought to be conferred on them by the respondents was not such full title as they had contemplated it to be, they proceeded to have the sale deed executed and registered in their favour, seeking extensions of time and paying interest for the period of delay in payment. The contract stood accomplished into a demise and the transaction ended. It is writ large that the appellants had elected to stand by the contract by digging the land, sinking the basement and raising about 9 floors above, investing crores of rupees. They have by their own conduct rendered the position irreversible and restitution impractical. We have not been shown any law or authority based whereon the appellants may annual and avoid a concluded contract and fix liability on respondents for the cost of their construction which they have voluntarily chosen to raise in spite of being aware of all the relevant facts and circumstances. 48. The learned counsel for the appellants referred to the provisions of Section 90(1) and (2) of the Jaipur Development Authority Act, 1982, which read as under: "90. Control by State Government -(1) The Authority shall exercise its powers and perform its duties under this Act in accordance with the policy framed and the guidelines laid down, from time to time by the State Government for development of the areas in the Jaipur Region.(2) The Authority shall be bound to comply with such directions which may be issued, from time to time, by the state Government for efficient administration of this Act." 49. It was contended that the State Government has the complete control over the JDA and therefore could direct the JDA to adhre to the FAR 2.0 as against the FAR 1.75 provided under the 1996 Regulations. We do not find much force in this submission. A reading of this section clearly shows that the Government can direct the authority to exercise its powers and perform its duty in accordance with the policy framed and the guidelines laid down from time to time. Policy and guidelines can be issued for general application or for a class of persons or area or based on some such other criteria as may withstand the test of Article 14 of the Constitution. The power conferred by Section 90 cannot be exercised by the Government to give directions to increase the FAR in one individual or particular case. The appellants cannot claim a right to get exemption from the prevalent law nor heard to say that since the Government had the power to give direction, its failure to exercise the power of issuing direction by reference to Section 90 of the JDA Act, it has perpetuated the breach of contract. 50. Counsel for the appellants also brought to our notice the provisions of Section 298(1) of the Rajasthan Municipalities Act, 1959 to contend that Government had the power to cancel or modify the Bye-laws framed by the Board and the failure to do so reflects that the government did not intend to stick to the representation made by it in the auction notice or in the sale deed. Section 298 reads as under: "298 Power of Government to cancel or modify bye-laws and rules of boards—(1) The State Government may at any time by notification in the Official Gazette repeal wholly or in part or modify any rule or bye-law made by any board.Provided that before taking any action under this sub-section, the State Government shall communicate to the board the grounds on which it proposes to do so, fix a reasonable period for the board to show cause against the proposal and consider the explanation and objections, if any of the board." Section 298 provides that the State Government has the power to cancel or modify bye-laws or rules framed by the board. Again this is of no avail to the appellants. Power under Section 298 is in the nature of power of superintendence. It is a general power given to the Government that in case the Government feels that the bye-laws framed or the orders issued are not reasonable or are detrimental to the public interest or there is any other good ground available, then, it can repeal the bye-laws wholly or in part or modify any rule or bye-law made by the Board after inviting objections. The power could not have been exercised to suit the needs of an individual case as has been contended by the learned senior counsel for the appellants. It may be noted that the learned senior counsel for the respondent pointed out during the course of hearing that the amended bye-laws were more beneficial to the appellants as there was number of exemptions to be taken into account while calculating the FAR, namely, storage on all floors, balcony, guard-door, lobby, terrace garden, service floor, AC plant room, locker, dark room, PBX room, guard room, power house, lift room and the lift well. Under the amended bye-laws of 1996 the appellants would get more covered area thus causing no prejudice to them. This has been strongly refuted by the counsel for the appellants. We need not go into this disputed question as it is of no consequence to the points already decided. 51. For the reasons stated above, | 0[ds]Statement about the existing state of the law innocently made cannot constitute misrepresentation if it is later found that the statement was erroneous. This would be particularly so where the other party to whom the statement is made is aware of or has the ability to conveniently apprise itself of the correct state of the facts and the law applicable. Assuming (but without holding) that there was some misrepresentation the appellants had a couple of remedies, i.e., to either rescind the contract or seek restitution or to affirm the contract without prejudice to their right to seek damages by way of restitution for the loss caused by the misrepresentation. It is apparent that the appellants did not rescind the contract or seek restitution by way of damages. Instead they affirmed the contract which is clear from the fact that they immediately commenced construction on the land even though the building plans were on FAR 1.75. Affirmation of the contract and proceeding with the constitution clearly indicates that the appellants did not rescind the contract nor reserved their right to seek restitution by award of damages; or seek restitution rather they affirmed the contract and went ahead withthe time of initiating the legal proceedings in the Court, it was open to the appellants to either affirm the contract without prejudice to their right seeking damages by way of restitution for loss caused by alleged misrepresentation or to rescind the contract by getting the declaration that the contract was not binding on the appellants. The appellants elected the first option. Had the appellants rescinded the contract and prayed for declaration that the contract was not binding on them, then, on its being so declared, terms 9 and 13 of the auction notice would not have bound the appellants in any way. The court while granting the relief could have moulded the relief according to facts and situation prevalent. It would not have in any way of affected the appellants. The appellants cannot be permitted to sit on the fence in indecision and take a chance. By putting up the construction of basement and the other floors above the appellants have encumbered the property. The respondent cannot be fastened with the liability to pay for the construction put up by the appellants with full knowledge of true facts.In our view, this decision has no application to the facts of the present case. In the said case the appellants therein was appointed as organising agent for lotteries of the Respondent State. Subsequently, disputes arose which led to termination of the agency by the State. Appellants therein got an arbitrator appointed under Section 8 of the Arbitration Act, 1940. Claims and counter-claims were filed and evidence adduced by the parties before the Arbitrator. Addition made its award determining the amount payable by the State to the appellants at Rs. 37,75,00,000/- and the amount payable by the appellants to the State by way of counter-claim at Rs. 4,61,35,242/-. District Judge made the award the rule of the court. This was in challenge in the High Court of Sikkim where there were only two Judges. Chief Justice set aside the award while the other Judge held that the matter required to be remitted to the arbitrator for re-determining the quantum of damages. The court thereafter by its order dated 29th September, 1995 directed the matter to be placed before the incoming Chief Justice/Judge. Subsequently both the Chief Justice and the other Judge were, in due course, succeeded by new incumbents to those offices. The new Judge fixed the date of hearing and before him the appellants filed an application opposing the hearing of the appeal in view of section 98(2) CPC. This application was dismissed by the Division Bench as not maintainable in view of the reference made by the Division Bench. This was challenge in this Court. After resolving the controversy on the aforesaid point, the Court proceeded to examine the award made by the arbitrator. It was held that the award under challenge stood vitiated on account of several errors of law, apparent on the face of it and such infirmities go to substantiate the claim of the State that the arbitrator not only acted arbitrarily and irrationally on a perverse understanding or misreading of the materials but was also found to have misdirected himself on the vital issues rendering the award to be bad in law. The arbitrator and the District Judge had recorded a finding that the State in spite of warnings and threats did not actually stop draws or to other subsequent draws by the appellants and allowed the lotteries to go on without any break. That the State government had condoned or waived the lapses and defaults. In this context, the observations quoted above were made by this court. It would be seen that this contract was an executory contract and not completed contract of sale of property. It was observed that a waiver involves a conscious, voluntary and intentional relinquishment or abandonment in known existing legal right. There were persistent and continuous defaults. Even if the past lapses were taken to have been waived by the State, it was observed by the Court that the State could not be compelled to condone the continues wrong and defaults of the appellants to their disadvantage and detriment. Observations quoted above are of no avail to the appellants as in that case the court found that the appellants were continuing with the defaults in an executory contract. The principle laid down in the said case would not be applicable to the facts of the present case.In either case, we find that the appellants are not entitled to any relief in the realm of the law of contracts. In spite of having acquired knowledge of the true facts assuming that there was any mistake or misrepresentation to begin with and having learnt that the title which was sought to be conferred on them by the respondents was not such full title as they had contemplated it to be, they proceeded to have the sale deed executed and registered in their favour, seeking extensions of time and paying interest for the period of delay in payment. The contract stood accomplished into a demise and the transaction ended. It is writ large that the appellants had elected to stand by the contract by digging the land, sinking the basement and raising about 9 floors above, investing crores of rupees. They have by their own conduct rendered the position irreversible and restitution impractical. We have not been shown any law or authority based whereon the appellants may annual and avoid a concluded contract and fix liability on respondents for the cost of their construction which they have voluntarily chosen to raise in spite of being aware of all the relevant facts and298 provides that the State Government has the power to cancel or modify bye-laws or rules framed by the board. Again this is of no avail to the appellants. Power under Section 298 is in the nature of power of superintendence. It is a general power given to the Government that in case the Government feels that the bye-laws framed or the orders issued are not reasonable or are detrimental to the public interest or there is any other good ground available, then, it can repeal the bye-laws wholly or in part or modify any rule or bye-law made by the Board after inviting objections. The power could not have been exercised to suit the needs of an individual case as has been contended by the learned senior counsel for theneed not go into this disputed question as it is of no consequence to the points already decided. | 0 | 12,441 | 1,367 | ### Instruction:
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the contents thereof it was argued that in the case of former the transaction is void while in the case of latter it is merely voidable. It was also urged that the appellants could avoid the transaction at any time. In our view, this judgment is of no assistance to the appellants as on facts we have found that the default committed by the respondent-State , if any, stood condoned by the appellants. 47. In either case, we find that the appellants are not entitled to any relief in the realm of the law of contracts. In spite of having acquired knowledge of the true facts assuming that there was any mistake or misrepresentation to begin with and having learnt that the title which was sought to be conferred on them by the respondents was not such full title as they had contemplated it to be, they proceeded to have the sale deed executed and registered in their favour, seeking extensions of time and paying interest for the period of delay in payment. The contract stood accomplished into a demise and the transaction ended. It is writ large that the appellants had elected to stand by the contract by digging the land, sinking the basement and raising about 9 floors above, investing crores of rupees. They have by their own conduct rendered the position irreversible and restitution impractical. We have not been shown any law or authority based whereon the appellants may annual and avoid a concluded contract and fix liability on respondents for the cost of their construction which they have voluntarily chosen to raise in spite of being aware of all the relevant facts and circumstances. 48. The learned counsel for the appellants referred to the provisions of Section 90(1) and (2) of the Jaipur Development Authority Act, 1982, which read as under: "90. Control by State Government -(1) The Authority shall exercise its powers and perform its duties under this Act in accordance with the policy framed and the guidelines laid down, from time to time by the State Government for development of the areas in the Jaipur Region.(2) The Authority shall be bound to comply with such directions which may be issued, from time to time, by the state Government for efficient administration of this Act." 49. It was contended that the State Government has the complete control over the JDA and therefore could direct the JDA to adhre to the FAR 2.0 as against the FAR 1.75 provided under the 1996 Regulations. We do not find much force in this submission. A reading of this section clearly shows that the Government can direct the authority to exercise its powers and perform its duty in accordance with the policy framed and the guidelines laid down from time to time. Policy and guidelines can be issued for general application or for a class of persons or area or based on some such other criteria as may withstand the test of Article 14 of the Constitution. The power conferred by Section 90 cannot be exercised by the Government to give directions to increase the FAR in one individual or particular case. The appellants cannot claim a right to get exemption from the prevalent law nor heard to say that since the Government had the power to give direction, its failure to exercise the power of issuing direction by reference to Section 90 of the JDA Act, it has perpetuated the breach of contract. 50. Counsel for the appellants also brought to our notice the provisions of Section 298(1) of the Rajasthan Municipalities Act, 1959 to contend that Government had the power to cancel or modify the Bye-laws framed by the Board and the failure to do so reflects that the government did not intend to stick to the representation made by it in the auction notice or in the sale deed. Section 298 reads as under: "298 Power of Government to cancel or modify bye-laws and rules of boards—(1) The State Government may at any time by notification in the Official Gazette repeal wholly or in part or modify any rule or bye-law made by any board.Provided that before taking any action under this sub-section, the State Government shall communicate to the board the grounds on which it proposes to do so, fix a reasonable period for the board to show cause against the proposal and consider the explanation and objections, if any of the board." Section 298 provides that the State Government has the power to cancel or modify bye-laws or rules framed by the board. Again this is of no avail to the appellants. Power under Section 298 is in the nature of power of superintendence. It is a general power given to the Government that in case the Government feels that the bye-laws framed or the orders issued are not reasonable or are detrimental to the public interest or there is any other good ground available, then, it can repeal the bye-laws wholly or in part or modify any rule or bye-law made by the Board after inviting objections. The power could not have been exercised to suit the needs of an individual case as has been contended by the learned senior counsel for the appellants. It may be noted that the learned senior counsel for the respondent pointed out during the course of hearing that the amended bye-laws were more beneficial to the appellants as there was number of exemptions to be taken into account while calculating the FAR, namely, storage on all floors, balcony, guard-door, lobby, terrace garden, service floor, AC plant room, locker, dark room, PBX room, guard room, power house, lift room and the lift well. Under the amended bye-laws of 1996 the appellants would get more covered area thus causing no prejudice to them. This has been strongly refuted by the counsel for the appellants. We need not go into this disputed question as it is of no consequence to the points already decided. 51. For the reasons stated above,
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terms 9 and 13 of the auction notice would not have bound the appellants in any way. The court while granting the relief could have moulded the relief according to facts and situation prevalent. It would not have in any way of affected the appellants. The appellants cannot be permitted to sit on the fence in indecision and take a chance. By putting up the construction of basement and the other floors above the appellants have encumbered the property. The respondent cannot be fastened with the liability to pay for the construction put up by the appellants with full knowledge of true facts.In our view, this decision has no application to the facts of the present case. In the said case the appellants therein was appointed as organising agent for lotteries of the Respondent State. Subsequently, disputes arose which led to termination of the agency by the State. Appellants therein got an arbitrator appointed under Section 8 of the Arbitration Act, 1940. Claims and counter-claims were filed and evidence adduced by the parties before the Arbitrator. Addition made its award determining the amount payable by the State to the appellants at Rs. 37,75,00,000/- and the amount payable by the appellants to the State by way of counter-claim at Rs. 4,61,35,242/-. District Judge made the award the rule of the court. This was in challenge in the High Court of Sikkim where there were only two Judges. Chief Justice set aside the award while the other Judge held that the matter required to be remitted to the arbitrator for re-determining the quantum of damages. The court thereafter by its order dated 29th September, 1995 directed the matter to be placed before the incoming Chief Justice/Judge. Subsequently both the Chief Justice and the other Judge were, in due course, succeeded by new incumbents to those offices. The new Judge fixed the date of hearing and before him the appellants filed an application opposing the hearing of the appeal in view of section 98(2) CPC. This application was dismissed by the Division Bench as not maintainable in view of the reference made by the Division Bench. This was challenge in this Court. After resolving the controversy on the aforesaid point, the Court proceeded to examine the award made by the arbitrator. It was held that the award under challenge stood vitiated on account of several errors of law, apparent on the face of it and such infirmities go to substantiate the claim of the State that the arbitrator not only acted arbitrarily and irrationally on a perverse understanding or misreading of the materials but was also found to have misdirected himself on the vital issues rendering the award to be bad in law. The arbitrator and the District Judge had recorded a finding that the State in spite of warnings and threats did not actually stop draws or to other subsequent draws by the appellants and allowed the lotteries to go on without any break. That the State government had condoned or waived the lapses and defaults. In this context, the observations quoted above were made by this court. It would be seen that this contract was an executory contract and not completed contract of sale of property. It was observed that a waiver involves a conscious, voluntary and intentional relinquishment or abandonment in known existing legal right. There were persistent and continuous defaults. Even if the past lapses were taken to have been waived by the State, it was observed by the Court that the State could not be compelled to condone the continues wrong and defaults of the appellants to their disadvantage and detriment. Observations quoted above are of no avail to the appellants as in that case the court found that the appellants were continuing with the defaults in an executory contract. The principle laid down in the said case would not be applicable to the facts of the present case.In either case, we find that the appellants are not entitled to any relief in the realm of the law of contracts. In spite of having acquired knowledge of the true facts assuming that there was any mistake or misrepresentation to begin with and having learnt that the title which was sought to be conferred on them by the respondents was not such full title as they had contemplated it to be, they proceeded to have the sale deed executed and registered in their favour, seeking extensions of time and paying interest for the period of delay in payment. The contract stood accomplished into a demise and the transaction ended. It is writ large that the appellants had elected to stand by the contract by digging the land, sinking the basement and raising about 9 floors above, investing crores of rupees. They have by their own conduct rendered the position irreversible and restitution impractical. We have not been shown any law or authority based whereon the appellants may annual and avoid a concluded contract and fix liability on respondents for the cost of their construction which they have voluntarily chosen to raise in spite of being aware of all the relevant facts and298 provides that the State Government has the power to cancel or modify bye-laws or rules framed by the board. Again this is of no avail to the appellants. Power under Section 298 is in the nature of power of superintendence. It is a general power given to the Government that in case the Government feels that the bye-laws framed or the orders issued are not reasonable or are detrimental to the public interest or there is any other good ground available, then, it can repeal the bye-laws wholly or in part or modify any rule or bye-law made by the Board after inviting objections. The power could not have been exercised to suit the needs of an individual case as has been contended by the learned senior counsel for theneed not go into this disputed question as it is of no consequence to the points already decided.
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Ibrahim Vs. Raju | period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life." (emphasis supplied) 17. In the light of the above, we shall now consider whether the compensation awarded to the appellant is just and reasonable or the Tribunal and the High Court committed an error by not awarding compensation for the future treatment, deprivation of opportunity to undertake further studies and consequential loss of earning/income which he would have derived by taking up appropriate job or doing some business as also diminution of the marriage prospects. 18. A perusal of the record shows that the appellant had produced substantive evidence to prove that as a result of accident he had suffered 8 grievous injuries including fracture of pelvis and he had to remain in the hospital for one month and a half; that he was treated by Dr. Anil K. Bhat, Assistant Professor, Orthopaedics and Dr. Joseph Thomas, Professor of Urology and that on account of grievous injuries he was unable to continue his studies. In his deposition, Dr. Joseph Thomas categorically stated that the appellant will have to undertake life long treatment for recurrence of urethral strictures and consequential dysfunction due to fracture of pelvis. Unfortunately, neither the Tribunal nor the High Court adverted to this part of the evidence and omitted to award compensation for the expenses likely to be incurred by the appellant for future treatment. One can reasonably expect that the appellant who was only 18 years old at the time of accident would live for at least next 50 years. The Tribunal awarded Rs.20,340/- for expenses incurred by the appellant for treatment taken by him in the hospital. Although, Dr. Thomas did not indicate the approximate expenditure likely to be incurred by the appellant and his family for future treatment, keeping in view the nature of injuries and the fact that he will have to take treatment for the remaining life, it will be reasonable to infer that he will be required to spend a minimum of Rs.1,000/- per month for future treatment, which would necessarily include fees of the doctors, medicines, transportation, etc. In the absence of concrete evidence about the anticipated expenditure, we think that ends of justice will be met if the appellant is awarded a sum of Rs.2 lacs which, if deposited in a fixed deposit, would earn an interest of Rs.14,000/- to 16,000/- per annum.19. On account of the injuries suffered by him, the prospects of the appellants marriage have considerably reduced. Rather, they are extremely bleak. In any case, on account of the fracture of pelvis, he will not be able to enjoy the matrimonial life. Therefore, the award of Rs.50,000/- under this head must be treated as wholly inadequate. In the facts and circumstances of the case, we feel that a sum of Rs.2 lacs should be awarded to the appellant for loss of marriage prospects and enjoyment of life.20. The compensation awarded for loss of future earning on account of permanent partial disablement is ex facie unreasonable. Respondent No.3 did not produce any evidence to controvert the appellants assertion that on account of the injuries suffered in the accident, he had to abandon his studies. The consequences which followed were extremely grave inasmuch as he lost all opportunities for making a career in future. The prospects of the appellants marriage are extremely bleak. Therefore, a sum of Rs.2 lacs deserves to be awarded under these heads.21. We are conscious of the fact that in the petition filed by him, the appellant had claimed compensation of Rs.3 lacs only with interest and cost. It will be reasonable to presume that due to financial incapacity the appellant and his family could not avail the services of a competent lawyer and make a claim for adequate compensation. However, as the Tribunal and the High Court and for that reason this Court are duty bound to award just compensation, we deem it proper to enhance the compensation from Rs.1,89,440/- to Rs.6 lacs. This approach is in tune with the judgment in Nagappa v. Gurudayal Singh (2003) 2 SCC 274. In that case, the Court considered a similar issue, referred to the judgments of the Bombay High Court in Municipal Corporation of Greater Bombay v. Kisan Gangaram Hire 1987 ACJ 311 (Bombay), Orissa High Court in Mulla Mod. Abdul Wahid v. Abdul Rahim 1994 ACJ 348 (Orissa) and Punjab and Haryana High Court in Devki Nandan Bangur v. State of Haryana 1995 ACJ 1288 (P&H) and observed:"For the reasons discussed above, in our view, under the MV Act, there is no restriction that the Tribunal/court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/court is to award "just" compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time-barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under sub-section (4) to Section 166, even the report submitted to the Claims Tribunal under sub-section (6) of Section 158 can be treated as an application for compensation under the MV Act. If required, in appropriate cases, the court may permit amendment to the claim petition." | 1[ds]18. A perusal of the record shows that the appellant had produced substantive evidence to prove that as a result of accident he had suffered 8 grievous injuries including fracture of pelvis and he had to remain in the hospital for one month and a half; that he was treated by Dr. Anil K. Bhat, Assistant Professor, Orthopaedics and Dr. Joseph Thomas, Professor of Urology and that on account of grievous injuries he was unable to continue his studies. In his deposition, Dr. Joseph Thomas categorically stated that the appellant will have to undertake life long treatment for recurrence of urethral strictures and consequential dysfunction due to fracture of pelvis. Unfortunately, neither the Tribunal nor the High Court adverted to this part of the evidence and omitted to award compensation for the expenses likely to be incurred by the appellant for future treatment. One can reasonably expect that the appellant who was only 18 years old at the time of accident would live for at least next 50 years. The Tribunal awarded Rs.20,340/for expenses incurred by the appellant for treatment taken by him in the hospital. Although, Dr. Thomas did not indicate the approximate expenditure likely to be incurred by the appellant and his family for future treatment, keeping in view the nature of injuries and the fact that he will have to take treatment for the remaining life, it will be reasonable to infer that he will be required to spend a minimum of Rs.1,000/per month for future treatment, which would necessarily include fees of the doctors, medicines, transportation, etc. In the absence of concrete evidence about the anticipated expenditure, we think that ends of justice will be met if the appellant is awarded a sum of Rs.2 lacs which, if deposited in a fixed deposit, would earn an interest of Rs.14,000/er annum.19. On account of the injuries suffered by him, the prospects of the appellants marriage have considerably reduced. Rather, they are extremely bleak. In any case, on account of the fracture of pelvis, he will not be able to enjoy the matrimonial life. Therefore, the award of Rs.50,000/under this head must be treated as wholly inadequate. In the facts and circumstances of the case, we feel that a sum of Rs.2 lacs should be awarded to the appellant for loss of marriage prospects and enjoyment of life.20. The compensation awarded for lossof future earning on account ofpermanent partial disablement is ex facie unreasonable. Respondent No.3 did not produce any evidence to controvert the appellants assertion that on account of the injuries suffered in the accident, he had to abandon his studies. The consequences which followed were extremely grave inasmuch as he lost all opportunities for making a career in future. The prospects of the appellants marriage are extremely bleak. Therefore, a sum of Rs.2 lacs deserves to be awarded under these heads.21. We are conscious of the fact that in the petition filed by him, the appellant had claimed compensation of Rs.3 lacs only with interest and cost. It will be reasonable to presume that due to financial incapacity the appellant and his family could not avail the services of a competent lawyer and make a claim for adequate compensation. However, as the Tribunal and the High Court and for that reason this Court are duty bound to award just compensation, we deem it proper to enhance the compensation from Rs.1,89,440/to Rs.6 lacs. This approach is in tune with the judgment in Nagappa v. Gurudayal Singh (2003) 2 SCC 274. In that case, the Court considered a similar issue, referred to the judgments of the Bombay High Court in Municipal Corporation of Greater Bombay v. Kisan Gangaram Hire 1987 ACJ 311 (Bombay), Orissa High Court in Mulla Mod. Abdul Wahid v. Abdul Rahim 1994 ACJ 348 (Orissa) and Punjab and Haryana High Court in Devki Nandan Bangur v. State of Haryana 1995 ACJ 1288 and observed:"For the reasons discussed above, in our view, under the MV Act, there is no restriction that the Tribunal/court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/court is to award "just" compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becomingor it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under(4) to Section 166, even the report submitted to the Claims Tribunal under(6) of Section 158 can be treated as an application for compensation under the MV Act. If required, in appropriate cases, the court may permit amendment to the claim petition." | 1 | 4,070 | 864 | ### Instruction:
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period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life." (emphasis supplied) 17. In the light of the above, we shall now consider whether the compensation awarded to the appellant is just and reasonable or the Tribunal and the High Court committed an error by not awarding compensation for the future treatment, deprivation of opportunity to undertake further studies and consequential loss of earning/income which he would have derived by taking up appropriate job or doing some business as also diminution of the marriage prospects. 18. A perusal of the record shows that the appellant had produced substantive evidence to prove that as a result of accident he had suffered 8 grievous injuries including fracture of pelvis and he had to remain in the hospital for one month and a half; that he was treated by Dr. Anil K. Bhat, Assistant Professor, Orthopaedics and Dr. Joseph Thomas, Professor of Urology and that on account of grievous injuries he was unable to continue his studies. In his deposition, Dr. Joseph Thomas categorically stated that the appellant will have to undertake life long treatment for recurrence of urethral strictures and consequential dysfunction due to fracture of pelvis. Unfortunately, neither the Tribunal nor the High Court adverted to this part of the evidence and omitted to award compensation for the expenses likely to be incurred by the appellant for future treatment. One can reasonably expect that the appellant who was only 18 years old at the time of accident would live for at least next 50 years. The Tribunal awarded Rs.20,340/- for expenses incurred by the appellant for treatment taken by him in the hospital. Although, Dr. Thomas did not indicate the approximate expenditure likely to be incurred by the appellant and his family for future treatment, keeping in view the nature of injuries and the fact that he will have to take treatment for the remaining life, it will be reasonable to infer that he will be required to spend a minimum of Rs.1,000/- per month for future treatment, which would necessarily include fees of the doctors, medicines, transportation, etc. In the absence of concrete evidence about the anticipated expenditure, we think that ends of justice will be met if the appellant is awarded a sum of Rs.2 lacs which, if deposited in a fixed deposit, would earn an interest of Rs.14,000/- to 16,000/- per annum.19. On account of the injuries suffered by him, the prospects of the appellants marriage have considerably reduced. Rather, they are extremely bleak. In any case, on account of the fracture of pelvis, he will not be able to enjoy the matrimonial life. Therefore, the award of Rs.50,000/- under this head must be treated as wholly inadequate. In the facts and circumstances of the case, we feel that a sum of Rs.2 lacs should be awarded to the appellant for loss of marriage prospects and enjoyment of life.20. The compensation awarded for loss of future earning on account of permanent partial disablement is ex facie unreasonable. Respondent No.3 did not produce any evidence to controvert the appellants assertion that on account of the injuries suffered in the accident, he had to abandon his studies. The consequences which followed were extremely grave inasmuch as he lost all opportunities for making a career in future. The prospects of the appellants marriage are extremely bleak. Therefore, a sum of Rs.2 lacs deserves to be awarded under these heads.21. We are conscious of the fact that in the petition filed by him, the appellant had claimed compensation of Rs.3 lacs only with interest and cost. It will be reasonable to presume that due to financial incapacity the appellant and his family could not avail the services of a competent lawyer and make a claim for adequate compensation. However, as the Tribunal and the High Court and for that reason this Court are duty bound to award just compensation, we deem it proper to enhance the compensation from Rs.1,89,440/- to Rs.6 lacs. This approach is in tune with the judgment in Nagappa v. Gurudayal Singh (2003) 2 SCC 274. In that case, the Court considered a similar issue, referred to the judgments of the Bombay High Court in Municipal Corporation of Greater Bombay v. Kisan Gangaram Hire 1987 ACJ 311 (Bombay), Orissa High Court in Mulla Mod. Abdul Wahid v. Abdul Rahim 1994 ACJ 348 (Orissa) and Punjab and Haryana High Court in Devki Nandan Bangur v. State of Haryana 1995 ACJ 1288 (P&H) and observed:"For the reasons discussed above, in our view, under the MV Act, there is no restriction that the Tribunal/court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/court is to award "just" compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time-barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under sub-section (4) to Section 166, even the report submitted to the Claims Tribunal under sub-section (6) of Section 158 can be treated as an application for compensation under the MV Act. If required, in appropriate cases, the court may permit amendment to the claim petition."
### Response:
1
### Explanation:
18. A perusal of the record shows that the appellant had produced substantive evidence to prove that as a result of accident he had suffered 8 grievous injuries including fracture of pelvis and he had to remain in the hospital for one month and a half; that he was treated by Dr. Anil K. Bhat, Assistant Professor, Orthopaedics and Dr. Joseph Thomas, Professor of Urology and that on account of grievous injuries he was unable to continue his studies. In his deposition, Dr. Joseph Thomas categorically stated that the appellant will have to undertake life long treatment for recurrence of urethral strictures and consequential dysfunction due to fracture of pelvis. Unfortunately, neither the Tribunal nor the High Court adverted to this part of the evidence and omitted to award compensation for the expenses likely to be incurred by the appellant for future treatment. One can reasonably expect that the appellant who was only 18 years old at the time of accident would live for at least next 50 years. The Tribunal awarded Rs.20,340/for expenses incurred by the appellant for treatment taken by him in the hospital. Although, Dr. Thomas did not indicate the approximate expenditure likely to be incurred by the appellant and his family for future treatment, keeping in view the nature of injuries and the fact that he will have to take treatment for the remaining life, it will be reasonable to infer that he will be required to spend a minimum of Rs.1,000/per month for future treatment, which would necessarily include fees of the doctors, medicines, transportation, etc. In the absence of concrete evidence about the anticipated expenditure, we think that ends of justice will be met if the appellant is awarded a sum of Rs.2 lacs which, if deposited in a fixed deposit, would earn an interest of Rs.14,000/er annum.19. On account of the injuries suffered by him, the prospects of the appellants marriage have considerably reduced. Rather, they are extremely bleak. In any case, on account of the fracture of pelvis, he will not be able to enjoy the matrimonial life. Therefore, the award of Rs.50,000/under this head must be treated as wholly inadequate. In the facts and circumstances of the case, we feel that a sum of Rs.2 lacs should be awarded to the appellant for loss of marriage prospects and enjoyment of life.20. The compensation awarded for lossof future earning on account ofpermanent partial disablement is ex facie unreasonable. Respondent No.3 did not produce any evidence to controvert the appellants assertion that on account of the injuries suffered in the accident, he had to abandon his studies. The consequences which followed were extremely grave inasmuch as he lost all opportunities for making a career in future. The prospects of the appellants marriage are extremely bleak. Therefore, a sum of Rs.2 lacs deserves to be awarded under these heads.21. We are conscious of the fact that in the petition filed by him, the appellant had claimed compensation of Rs.3 lacs only with interest and cost. It will be reasonable to presume that due to financial incapacity the appellant and his family could not avail the services of a competent lawyer and make a claim for adequate compensation. However, as the Tribunal and the High Court and for that reason this Court are duty bound to award just compensation, we deem it proper to enhance the compensation from Rs.1,89,440/to Rs.6 lacs. This approach is in tune with the judgment in Nagappa v. Gurudayal Singh (2003) 2 SCC 274. In that case, the Court considered a similar issue, referred to the judgments of the Bombay High Court in Municipal Corporation of Greater Bombay v. Kisan Gangaram Hire 1987 ACJ 311 (Bombay), Orissa High Court in Mulla Mod. Abdul Wahid v. Abdul Rahim 1994 ACJ 348 (Orissa) and Punjab and Haryana High Court in Devki Nandan Bangur v. State of Haryana 1995 ACJ 1288 and observed:"For the reasons discussed above, in our view, under the MV Act, there is no restriction that the Tribunal/court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/court is to award "just" compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becomingor it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under(4) to Section 166, even the report submitted to the Claims Tribunal under(6) of Section 158 can be treated as an application for compensation under the MV Act. If required, in appropriate cases, the court may permit amendment to the claim petition."
|
Rabindranath Mukhopadhyay and Ors Vs. Coal India Ltd. and Ors | 1. This special leave petition arises from the judgment of the Division Bench of the Madhya Pradesh High Court, made on January 15, 1997 in LPA No. 255/96. The first respondent had evolved the LTC Rules for its executive cadre employees and the same were last revised on May 15,1989. Thereunder Clause 1(b)(ii) postulates that: Once in a block of 4 calender years commencing from the 1st January, 1976 the executive cadre employees will be entitled to the concession under these rules for journeys to any place in India. This concession will, however, be in lieu of LTC entitlement of that year to travel to home town and back. This facility of availing LTC for journeys to any place in India once in 4 years will also be available to employees whose home towns are either the same or very close to their places of posting and so are not entitled to LTC for home town. The employees and/or members of the family may avail of LTC, facilities for travel to the same place or to different places of their choice in respect of the facility available to visit any place in India in a block of 4 years. 2. Subsequently, by the Resolution No. 159 dated September 14, 1996, the respondent had given option in respect of the benefit of the LTC, to the Executives of the company or its subsidiary companies without production of certificate, as detailed hereunder: The executives would have the option to choose any one of the following alternatives w.e.f. 01.01.1997. (a) The existing facilities of LTC i.e. the executive with entitled family members may visit any place of India by entitled class of journey once in a Block of Four years. OR (b) Encash the facility of LTC subject to the limit of Railway fare in the entitled class upto 1700 K.M. each way for the employee and entitled family members. (ii) The one time option has to be exercised before 31.12.1996. (iii) Taxes as applicable has to be paid by the executives. This will take effect on and from 01.01.1997. 3. Consequently, the facility of LTC for travelling to home town was also extended to travelling any place in India as per the above resolution dated September 14, 1996. Instead of production of the certificate of the actual travel, the Executive have also been given an option either to avail of the facility or encash the LTC facility, subject to the limit of Railway fare of the entitled class upto a maximum distance of 1700 k.ms. each way for the employee and entitled family members. But the above decision has been given effect to from January 1, 1997. The petitioner appearing in person has contended in the High Court as well as before us that the fixation of the date is arbitrary. We find no force in the contention. It is seen that the aforesaid Resolution communicated by proceedings dated October 10, 1996, postulates an employee who is entitled to avail of the facility of LTC, instead of executive class, has been given two options, viz., of actual performance of the travel once in a block of four years which would be normal one and a salutary policy to enable the employee to broaden his vision of thought and action, and to encash the same, instead of actually travelling, which is an exception and proof of production of the travel certificate and the expenses incurred therefore has been dispensed with. It being a policy decision taken by the respondent-Management, the policy was given effect to from January 1, 1997, obviously the beginning of the calender year. It is uniformly applicable to all employees of that class. Under those circumstances, we do not think that there is any arbitrariness in fixation of the date. 4. It is then contended that by fixing the date as 1.1.1997, discrimination has been meted out between all the classes of the employees who retired before and those who would retire subsequent to 1.1.1997. It may be fortuitous stand for the employees who would be retiring on or before 31st December, 1996 without availment of the encashment of LTC but nonetheless he has not been denied the facility of the actual travel by virtue of the alternative option given. The option is only of encashment and imposed no prohibition on the travel. It is then contended that the four years block starting from 1.1.1996 would be postponed by fixing the four years block in the present proceedings and an employee would be deprived of an availment of the two benefits. We find no force in this contention too. They have not shifted the commencement of the block year, for availment purpose and it remains in operation as originally started. It is only a specification that once in a block of four years, the availment of the LTC or encashment of LTC would be available. It does not have the effect of the shifting of the running of the block period. | 0[ds]We find no force in the contention. It is seen that the aforesaid Resolution communicated by proceedings dated October 10, 1996, postulates an employee who is entitled to avail of the facility of LTC, instead of executive class, has been given two options, viz., of actual performance of the travel once in a block of four years which would be normal one and a salutary policy to enable the employee to broaden his vision of thought and action, and to encash the same, instead of actually travelling, which is an exception and proof of production of the travel certificate and the expenses incurred therefore has been dispensed with. It being a policy decision taken by the respondent-Management, the policy was given effect to from January 1, 1997, obviously the beginning of the calender year. It is uniformly applicable to all employees of that class. Under those circumstances, we do not think that there is any arbitrariness in fixation of the date.We find no force in this contention too. They have not shifted the commencement of the block year, for availment purpose and it remains in operation as originally started. It is only a specification that once in a block of four years, the availment of the LTC or encashment of LTC would be available. It does not have the effect of the shifting of the running of the block period. | 0 | 919 | 257 | ### 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. This special leave petition arises from the judgment of the Division Bench of the Madhya Pradesh High Court, made on January 15, 1997 in LPA No. 255/96. The first respondent had evolved the LTC Rules for its executive cadre employees and the same were last revised on May 15,1989. Thereunder Clause 1(b)(ii) postulates that: Once in a block of 4 calender years commencing from the 1st January, 1976 the executive cadre employees will be entitled to the concession under these rules for journeys to any place in India. This concession will, however, be in lieu of LTC entitlement of that year to travel to home town and back. This facility of availing LTC for journeys to any place in India once in 4 years will also be available to employees whose home towns are either the same or very close to their places of posting and so are not entitled to LTC for home town. The employees and/or members of the family may avail of LTC, facilities for travel to the same place or to different places of their choice in respect of the facility available to visit any place in India in a block of 4 years. 2. Subsequently, by the Resolution No. 159 dated September 14, 1996, the respondent had given option in respect of the benefit of the LTC, to the Executives of the company or its subsidiary companies without production of certificate, as detailed hereunder: The executives would have the option to choose any one of the following alternatives w.e.f. 01.01.1997. (a) The existing facilities of LTC i.e. the executive with entitled family members may visit any place of India by entitled class of journey once in a Block of Four years. OR (b) Encash the facility of LTC subject to the limit of Railway fare in the entitled class upto 1700 K.M. each way for the employee and entitled family members. (ii) The one time option has to be exercised before 31.12.1996. (iii) Taxes as applicable has to be paid by the executives. This will take effect on and from 01.01.1997. 3. Consequently, the facility of LTC for travelling to home town was also extended to travelling any place in India as per the above resolution dated September 14, 1996. Instead of production of the certificate of the actual travel, the Executive have also been given an option either to avail of the facility or encash the LTC facility, subject to the limit of Railway fare of the entitled class upto a maximum distance of 1700 k.ms. each way for the employee and entitled family members. But the above decision has been given effect to from January 1, 1997. The petitioner appearing in person has contended in the High Court as well as before us that the fixation of the date is arbitrary. We find no force in the contention. It is seen that the aforesaid Resolution communicated by proceedings dated October 10, 1996, postulates an employee who is entitled to avail of the facility of LTC, instead of executive class, has been given two options, viz., of actual performance of the travel once in a block of four years which would be normal one and a salutary policy to enable the employee to broaden his vision of thought and action, and to encash the same, instead of actually travelling, which is an exception and proof of production of the travel certificate and the expenses incurred therefore has been dispensed with. It being a policy decision taken by the respondent-Management, the policy was given effect to from January 1, 1997, obviously the beginning of the calender year. It is uniformly applicable to all employees of that class. Under those circumstances, we do not think that there is any arbitrariness in fixation of the date. 4. It is then contended that by fixing the date as 1.1.1997, discrimination has been meted out between all the classes of the employees who retired before and those who would retire subsequent to 1.1.1997. It may be fortuitous stand for the employees who would be retiring on or before 31st December, 1996 without availment of the encashment of LTC but nonetheless he has not been denied the facility of the actual travel by virtue of the alternative option given. The option is only of encashment and imposed no prohibition on the travel. It is then contended that the four years block starting from 1.1.1996 would be postponed by fixing the four years block in the present proceedings and an employee would be deprived of an availment of the two benefits. We find no force in this contention too. They have not shifted the commencement of the block year, for availment purpose and it remains in operation as originally started. It is only a specification that once in a block of four years, the availment of the LTC or encashment of LTC would be available. It does not have the effect of the shifting of the running of the block period.
### Response:
0
### Explanation:
We find no force in the contention. It is seen that the aforesaid Resolution communicated by proceedings dated October 10, 1996, postulates an employee who is entitled to avail of the facility of LTC, instead of executive class, has been given two options, viz., of actual performance of the travel once in a block of four years which would be normal one and a salutary policy to enable the employee to broaden his vision of thought and action, and to encash the same, instead of actually travelling, which is an exception and proof of production of the travel certificate and the expenses incurred therefore has been dispensed with. It being a policy decision taken by the respondent-Management, the policy was given effect to from January 1, 1997, obviously the beginning of the calender year. It is uniformly applicable to all employees of that class. Under those circumstances, we do not think that there is any arbitrariness in fixation of the date.We find no force in this contention too. They have not shifted the commencement of the block year, for availment purpose and it remains in operation as originally started. It is only a specification that once in a block of four years, the availment of the LTC or encashment of LTC would be available. It does not have the effect of the shifting of the running of the block period.
|
Union of India and Others Vs. Leukoplast Private Limited and Others | or Proprietary Medicines means any drug or medicinal preparation, in whatever form, for use in the internal or external treatment of, or for the prevention of ailments in human beings or animals, which bears either on itself or on its container or both, a name which is not specified in a monograph, in a Pharmacopoeia, Formulary or other publications notified in this behalf by the Central Government in the Official Gazette or which is a brand name, that is a name or a registered trade mark under the Trade and Merchandise Marks Act, 1958 (43 of 1958), or any other mark such as a symbol, monogram, label, signature or invented words or any writing which is used in relation to that medicine for the purpose of indicating or so as to indicate a connection in the course of trade between medicine and some person, having the right either as proprietor or otherwise to use the name or mark with or without any indication of the identity of that person Explanation II. - (omitted as unnecessary.) 2. The respondent is a company engaged in the manufacture of strips of surgical dressings containing a pad medicated with Nitrofurozone (0.125%) sold under the trade name "Handyplast". A sample of the said product is placed before the Court as Exh. B. The following is the general description of such products, as set out by the High Court "Such elastic adhesive wound dressing consists of a fabric pad, comprising a piece of lint wrapped in muslin bandage, fixed to a rectangular piece of extension plaster so as to leave a margin of adhesive surface surrounding the pad. The elasticity of the plaster is unidirectional across the narrow width of the pad. The pad and adhesive margin are covered with a protector, which is removed before application. The pad is medicated with an antiseptic and dyed yellow, if necessary, with a non-toxic dye; the antiseptic and dye may be omitted if the dressing is supplied sterile." * 3. Both parties agree that the product in question accords with the above description. The question is whether it is a patent or proprietary medicine within the meaning of Tariff Item 14-E. The Explanation defines the expression "patent or proprietary medicines" to mean inter alia "medicinal preparation, in whatever form, for use in the external treatment of or for the prevention of ailments in human beings which bears either on itself or on its container or both, a name which is not specified in a monograph in a Pharmacopoeia". The respondents case is that the said product is used merely for protecting a cut for a wound from getting infected by dust and other substances, thus enabling the body system to cure itself. According to the respondent its product does not cure nor does it have any curative properties. On the other hand the case of Revenue is that had the product been supplied in a mere sterile form, the respondents case could have been accepted but in this case the respondent adds a medicine namely Nitrofurozone after rendering the dressing sterile. The Revenues case is that the Nitrofurozone is meant for curing/treating the cut or wound, as the case may be. In support of its case the Revenue relies upon the very advertisements issued by the respondent saying that it is a medicinal preparation4. The High Court has held in favour of the respondent mainly on two grounds, viz., (i) for the said product to become a medicinal preparation, the Nitrofurozone must be at least one per cent.; since it is only 0.125 per cent. in the case of Handyplast it cannot be called a medicine or medicinal preparation and (ii) the said negligible amount of Nitrofurozone is applied "for an antiseptic purpose, that is to say, to make the said paid sterile". In support of the first proposition the High Court has relied upon a statement under the heading "Non-adherent Wound-contact Dressings : FRAMYCETIN SULPLHATE GAUZE (TULLE) DRESSING" from a textbook The Pharmaceutical Codex - incorporating the British Pharmaceutical Codex, Eleventh Edn., 1979 prepared and published by the Department of Pharmaceutical Sciences, The Pharmaceutical Society of Great Britain. We have perused the same and find that the said requirement is in the case of a gauze and not in the case of dressing or pad like the respondents product. There is no other statement in the said Codex, which says that in the case of a dressing pad like the one concerned herein, Nitrofurozone or other drug should be in a particular quantity. The said reason given by the High Court is, therefore, unsustainable5. Coming to the other ground given by the High Court we find ourselves equally unable to agree. The Nitrofurozone is not applied to render the pad sterile; the pad is already rendered sterile and thereafter Nitrofurozone in the said small quantity is added. Before us Shri Hidayatullah, learned counsel for the respondent, sought to contend that the said small quantity of Nitrofurozone is applied to preserve the sterility; but this is not the ground assigned by the High Court, nor is any textbook cited by learned counsel to support his contention conclusively6. Even though we are not satisfied with the reasoning of the High Court, we are of the opinion that no interference is called for in the particular facts and circumstances of the case. The relevant facts relating to the dispute concerned herein have been stated in the opening paragraphs of the judgment of the High Court, which establish that the proviso to Section 11-A may not be attracted to this case. The High Court has traced the course of this litigation and the inordinate delays in deciding the matter. The respondent has been paying duty all the while under T-1.68 till the Central Excise Tariff Act, 1985 came into force. The difference of duty is very small. Having regard to all the above facts, we do not think this is a fit case for interfering under Article 136 of the Constitution | 0[ds]We have perused the same and find that the said requirement is in the case of a gauze and not in the case of dressing or pad like the respondents product. There is no other statement in the said Codex, which says that in the case of a dressing pad like the one concerned herein, Nitrofurozone or other drug should be in a particular quantity. The said reason given by the High Court is, therefore, unsustainable5. Coming to the other ground given by the High Court we find ourselves equally unable to agree. The Nitrofurozone is not applied to render the pad sterile; the pad is already rendered sterile and thereafter Nitrofurozone in the said small quantity is added. Before us Shri Hidayatullah, learned counsel for the respondent, sought to contend that the said small quantity of Nitrofurozone is applied to preserve the sterility; but this is not the ground assigned by the High Court, nor is any textbook cited by learned counsel to support his contention conclusively6. Even though we are not satisfied with the reasoning of the High Court, we are of the opinion that no interference is called for in the particular facts and circumstances of the case. The relevant facts relating to the dispute concerned herein have been stated in the opening paragraphs of the judgment of the High Court, which establish that the proviso to Section 11-A may not be attracted to this case. The High Court has traced the course of this litigation and the inordinate delays in deciding the matter. The respondent has been paying duty all the while under T-1.68 tillthe Central Excise Tariff Act, 1985 came into force. The difference of duty is very small. Having regard to all the above facts, we do not think this is a fit case for interfering under Article 136 of the Constitution | 0 | 1,241 | 336 | ### 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:
or Proprietary Medicines means any drug or medicinal preparation, in whatever form, for use in the internal or external treatment of, or for the prevention of ailments in human beings or animals, which bears either on itself or on its container or both, a name which is not specified in a monograph, in a Pharmacopoeia, Formulary or other publications notified in this behalf by the Central Government in the Official Gazette or which is a brand name, that is a name or a registered trade mark under the Trade and Merchandise Marks Act, 1958 (43 of 1958), or any other mark such as a symbol, monogram, label, signature or invented words or any writing which is used in relation to that medicine for the purpose of indicating or so as to indicate a connection in the course of trade between medicine and some person, having the right either as proprietor or otherwise to use the name or mark with or without any indication of the identity of that person Explanation II. - (omitted as unnecessary.) 2. The respondent is a company engaged in the manufacture of strips of surgical dressings containing a pad medicated with Nitrofurozone (0.125%) sold under the trade name "Handyplast". A sample of the said product is placed before the Court as Exh. B. The following is the general description of such products, as set out by the High Court "Such elastic adhesive wound dressing consists of a fabric pad, comprising a piece of lint wrapped in muslin bandage, fixed to a rectangular piece of extension plaster so as to leave a margin of adhesive surface surrounding the pad. The elasticity of the plaster is unidirectional across the narrow width of the pad. The pad and adhesive margin are covered with a protector, which is removed before application. The pad is medicated with an antiseptic and dyed yellow, if necessary, with a non-toxic dye; the antiseptic and dye may be omitted if the dressing is supplied sterile." * 3. Both parties agree that the product in question accords with the above description. The question is whether it is a patent or proprietary medicine within the meaning of Tariff Item 14-E. The Explanation defines the expression "patent or proprietary medicines" to mean inter alia "medicinal preparation, in whatever form, for use in the external treatment of or for the prevention of ailments in human beings which bears either on itself or on its container or both, a name which is not specified in a monograph in a Pharmacopoeia". The respondents case is that the said product is used merely for protecting a cut for a wound from getting infected by dust and other substances, thus enabling the body system to cure itself. According to the respondent its product does not cure nor does it have any curative properties. On the other hand the case of Revenue is that had the product been supplied in a mere sterile form, the respondents case could have been accepted but in this case the respondent adds a medicine namely Nitrofurozone after rendering the dressing sterile. The Revenues case is that the Nitrofurozone is meant for curing/treating the cut or wound, as the case may be. In support of its case the Revenue relies upon the very advertisements issued by the respondent saying that it is a medicinal preparation4. The High Court has held in favour of the respondent mainly on two grounds, viz., (i) for the said product to become a medicinal preparation, the Nitrofurozone must be at least one per cent.; since it is only 0.125 per cent. in the case of Handyplast it cannot be called a medicine or medicinal preparation and (ii) the said negligible amount of Nitrofurozone is applied "for an antiseptic purpose, that is to say, to make the said paid sterile". In support of the first proposition the High Court has relied upon a statement under the heading "Non-adherent Wound-contact Dressings : FRAMYCETIN SULPLHATE GAUZE (TULLE) DRESSING" from a textbook The Pharmaceutical Codex - incorporating the British Pharmaceutical Codex, Eleventh Edn., 1979 prepared and published by the Department of Pharmaceutical Sciences, The Pharmaceutical Society of Great Britain. We have perused the same and find that the said requirement is in the case of a gauze and not in the case of dressing or pad like the respondents product. There is no other statement in the said Codex, which says that in the case of a dressing pad like the one concerned herein, Nitrofurozone or other drug should be in a particular quantity. The said reason given by the High Court is, therefore, unsustainable5. Coming to the other ground given by the High Court we find ourselves equally unable to agree. The Nitrofurozone is not applied to render the pad sterile; the pad is already rendered sterile and thereafter Nitrofurozone in the said small quantity is added. Before us Shri Hidayatullah, learned counsel for the respondent, sought to contend that the said small quantity of Nitrofurozone is applied to preserve the sterility; but this is not the ground assigned by the High Court, nor is any textbook cited by learned counsel to support his contention conclusively6. Even though we are not satisfied with the reasoning of the High Court, we are of the opinion that no interference is called for in the particular facts and circumstances of the case. The relevant facts relating to the dispute concerned herein have been stated in the opening paragraphs of the judgment of the High Court, which establish that the proviso to Section 11-A may not be attracted to this case. The High Court has traced the course of this litigation and the inordinate delays in deciding the matter. The respondent has been paying duty all the while under T-1.68 till the Central Excise Tariff Act, 1985 came into force. The difference of duty is very small. Having regard to all the above facts, we do not think this is a fit case for interfering under Article 136 of the Constitution
### Response:
0
### Explanation:
We have perused the same and find that the said requirement is in the case of a gauze and not in the case of dressing or pad like the respondents product. There is no other statement in the said Codex, which says that in the case of a dressing pad like the one concerned herein, Nitrofurozone or other drug should be in a particular quantity. The said reason given by the High Court is, therefore, unsustainable5. Coming to the other ground given by the High Court we find ourselves equally unable to agree. The Nitrofurozone is not applied to render the pad sterile; the pad is already rendered sterile and thereafter Nitrofurozone in the said small quantity is added. Before us Shri Hidayatullah, learned counsel for the respondent, sought to contend that the said small quantity of Nitrofurozone is applied to preserve the sterility; but this is not the ground assigned by the High Court, nor is any textbook cited by learned counsel to support his contention conclusively6. Even though we are not satisfied with the reasoning of the High Court, we are of the opinion that no interference is called for in the particular facts and circumstances of the case. The relevant facts relating to the dispute concerned herein have been stated in the opening paragraphs of the judgment of the High Court, which establish that the proviso to Section 11-A may not be attracted to this case. The High Court has traced the course of this litigation and the inordinate delays in deciding the matter. The respondent has been paying duty all the while under T-1.68 tillthe Central Excise Tariff Act, 1985 came into force. The difference of duty is very small. Having regard to all the above facts, we do not think this is a fit case for interfering under Article 136 of the Constitution
|
D.A.V. College & Others Vs. State of Punjab & Others | case of such a threat or violation is made out a petition under Article 32 must be entertained. Secondly, once it is entertained irrespective of whether it is found ultimately that in fact no fundamental rights of the petitioners are invaded the vires of the legislation or the competence of the Legislature to enact the impugned legislation must be gone into and determined. While the first proposition is valid, the second is not. 51. Shri Tarkunde the learned Advocate for the respondents in Writ petitions Nos. 353 and 354 of 1970 which were heard immediately after these petitions has raised a contention similar to that raised in the second submission in support of which he referred to the case of Mohammad Yasin v. The town Area committee, Jalalabad and Another. (1952 SCR 572 : AIR 1952 SC 115 : 1952 SCJ 162 ) We do not think that this decision supports his contention because in that case it was held that in the absence of any valid law authorising the Town Committee to levy any fees otherwise than for the use of any immovable property vested in or entrusted to the management of the Town Committee such illegal imposition must undoubtedly operate as an illegal restraint and must infringe the unfettered right of the wholesale dealer to carry on his occupation, trade or business which is guaranteed to him by Article 19(1)(g) of the Constitution. In that case the levy on the petitioner as a wholesale dealer was held to be obviously ultra vires the powers of the Committee and therefore the bye-law under which such a fee was levied could not be said to constitute a valid law which alone may under Article 19(6) of the Constitution impose a restriction on the right conferred by Article 19 (1)(g). It is, therefor, clear that as long as the petitioner makes out a prima facie case that his fundamental rights are affected or threatened he cannot be prevented from challenging that the law complained of which affects or invades those rights is invalid because of want of legislative competence. 52. In Chiranjitlal Chowdhuri v. The Union of India and Others, (1950 SCR 869 : AIR 1951 SC 41 : 1951 SCJ 29 ) Mukherjea, J. as he then was gave expression to a similar view as to the maintainability of a petition under Article 32. At page 899 he said :"To make out a case under this Article, it is incumbent upon the petitioner to establish not merely that the law complained of is beyond the competence of the particular Legislature as not being covered by any of the items in the legislative lists, but that it affects or invades his fundamental rights guaranteed by the Constitution, of which he could seek enforcement by an appropriate writ or order". 53. It is apparent therefore that the validity or the invalidity of the impugned law, on the ground of legislative competence should purport to infringe that fundamental rights of the petitioner as a necessary condition of its being adjudicated. But if in fact the law does not, even on the assumption that it is valid, infringe and fundamental rights, this Court will not decide that question in a petition under Article 32. The reason for it is obvious, namely that no petition under Article 32, will be entertained if fundamental rights are not affected and if the impugned law does not affect the fundamental rights it would be contrary to this principle to determine whether that law in fact has legislative competence or not. 54. Gajendragadkar, J. as he then was, in Khyerbari Tea Co. Ltd., and Another v. State of Assam, (1964 (5) SCR 975 : AIR 1964 SC 925 : (1964) 2 SCA 317) while dealing with a challenge to the validity of Section 24 of the Assam Taxation on Goods Act, 1961 said at page 1009 :"There may be some force in this contention, but we do not see how the petitioners can be permitted to challenge the validity of Section 24 when it is not alleged by them that any action is proposed to be taken against them under the said Section. In dealing with the petition under Article 32 this Court would naturally confine the petitioners to the provisions of the impugned Act by which their fundamental rights are either affected or threatened. That is why we are not satisfied that it is necessary to decide the question about the validity of Section 24 in the present proceeding". 55. In Saghir Ahmad v. State of U. P. (1955 SCR 707 at 726 : AIR 1954 SC 728 : 1954 SCJ 819 ) it was held that when the enactment on the face of it is found to violate the fundamental rights guaranteed under Article 19(1)(g) of the Constitution it must be held to be invalid unless those who support the legislation can bring it within the purview of the exception laid down in Clause 6 of the Article but if the respondents did not place any materials before the Court to establish that the legislation comes within the permissible limits of Clause 6, it is surely not for the appellants to prove negatively that the legislation was not reasonable and was not conducive to the welfare of the community. There are other such instances where this Court has drawn an initial presumption of constitutionality when a statute was impugned as being unconstitutional. 56. This being the legal position in our view when once an impugned law does not affect the fundamental rights of the petitioners as in this case we have founded it to be so, it is not necessary to go into the question of legislative competence or to decide on the validity of Section 5. 57. We have therefore no hesitation in holding that the notification under which the colleges have been affiliated to the Universities is legally valid and from the date specified therein petitioners colleges cease to be affiliated to the Punjab University. | 1[ds]This argument however overlooks the basis tents of the sect in that it admits to membership only those Hindus who subscribe to the decalogue and its beliefs in the canons of Vedic interpretation laid down by Swami Dayanand but all outsiders who are non-Hindus such as Muslims and Christians must undergo a ceremony of purification or ShudhiIn our view there is no possible justification for the provisions contained in Clauses 2(1)(a) and 17 of Chapter V of the statutes which decidedly interfere with the rights of management of the petitioners colleges. These provisions cannot therefore be made as conditions of affiliation, the non-compliance of which would involve disaffiliation and consequently they will have to be struck done as offending Article 30(1)Clause 18 however in our view does not suffer from the same vice as Clause 17 because that provision in so far as it is applicable to the minority institution empowers the University to prescribe by regulations governing the service and conduct of teachers which is enacted in the larger interests of the institutions to ensure their efficiency and excellence. It may for instance issue an ordinance in respect of age of superannuation or prescribe minimum qualifications for teachers to be employed by such institutions either generally or in particular subjects. Uniformity in the conditions of service and conduct of teachers in all non-Government colleges would make for harmony and avoid frustration. Of course while the power to make ordinances in respect of the matters referred to is unexceptional the nature of the infringement of the right, if any, under Article 30(1) will depend on the actual purpose and import of the ordinance when made and the manner in which it is likely to affect the administration of the educational institution, about which it is not possible now to predicateIt is apparent therefore that the validity or the invalidity of the impugned law, on the ground of legislative competence should purport to infringe that fundamental rights of the petitioner as a necessary condition of its being adjudicated. But if in fact the law does not, even on the assumption that it is valid, infringe and fundamental rights, this Court will not decide that question in a petition under Article 32. The reason for it is obvious, namely that no petition under Article 32, will be entertained if fundamental rights are not affected and if the impugned law does not affect the fundamental rights it would be contrary to this principle to determine whether that law in fact has legislative competence or notThis being the legal position in our view when once an impugned law does not affect the fundamental rights of the petitioners as in this case we have founded it to be so, it is not necessary to go into the question of legislative competence or to decide on the validity of Section 550. We havetherefore no hesitation in holding that the notification under which the colleges have been affiliated to the Universities is legally valid and from the date specified therein petitioners colleges cease to be affiliated to the Punjab University. | 1 | 11,451 | 550 | ### 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 of such a threat or violation is made out a petition under Article 32 must be entertained. Secondly, once it is entertained irrespective of whether it is found ultimately that in fact no fundamental rights of the petitioners are invaded the vires of the legislation or the competence of the Legislature to enact the impugned legislation must be gone into and determined. While the first proposition is valid, the second is not. 51. Shri Tarkunde the learned Advocate for the respondents in Writ petitions Nos. 353 and 354 of 1970 which were heard immediately after these petitions has raised a contention similar to that raised in the second submission in support of which he referred to the case of Mohammad Yasin v. The town Area committee, Jalalabad and Another. (1952 SCR 572 : AIR 1952 SC 115 : 1952 SCJ 162 ) We do not think that this decision supports his contention because in that case it was held that in the absence of any valid law authorising the Town Committee to levy any fees otherwise than for the use of any immovable property vested in or entrusted to the management of the Town Committee such illegal imposition must undoubtedly operate as an illegal restraint and must infringe the unfettered right of the wholesale dealer to carry on his occupation, trade or business which is guaranteed to him by Article 19(1)(g) of the Constitution. In that case the levy on the petitioner as a wholesale dealer was held to be obviously ultra vires the powers of the Committee and therefore the bye-law under which such a fee was levied could not be said to constitute a valid law which alone may under Article 19(6) of the Constitution impose a restriction on the right conferred by Article 19 (1)(g). It is, therefor, clear that as long as the petitioner makes out a prima facie case that his fundamental rights are affected or threatened he cannot be prevented from challenging that the law complained of which affects or invades those rights is invalid because of want of legislative competence. 52. In Chiranjitlal Chowdhuri v. The Union of India and Others, (1950 SCR 869 : AIR 1951 SC 41 : 1951 SCJ 29 ) Mukherjea, J. as he then was gave expression to a similar view as to the maintainability of a petition under Article 32. At page 899 he said :"To make out a case under this Article, it is incumbent upon the petitioner to establish not merely that the law complained of is beyond the competence of the particular Legislature as not being covered by any of the items in the legislative lists, but that it affects or invades his fundamental rights guaranteed by the Constitution, of which he could seek enforcement by an appropriate writ or order". 53. It is apparent therefore that the validity or the invalidity of the impugned law, on the ground of legislative competence should purport to infringe that fundamental rights of the petitioner as a necessary condition of its being adjudicated. But if in fact the law does not, even on the assumption that it is valid, infringe and fundamental rights, this Court will not decide that question in a petition under Article 32. The reason for it is obvious, namely that no petition under Article 32, will be entertained if fundamental rights are not affected and if the impugned law does not affect the fundamental rights it would be contrary to this principle to determine whether that law in fact has legislative competence or not. 54. Gajendragadkar, J. as he then was, in Khyerbari Tea Co. Ltd., and Another v. State of Assam, (1964 (5) SCR 975 : AIR 1964 SC 925 : (1964) 2 SCA 317) while dealing with a challenge to the validity of Section 24 of the Assam Taxation on Goods Act, 1961 said at page 1009 :"There may be some force in this contention, but we do not see how the petitioners can be permitted to challenge the validity of Section 24 when it is not alleged by them that any action is proposed to be taken against them under the said Section. In dealing with the petition under Article 32 this Court would naturally confine the petitioners to the provisions of the impugned Act by which their fundamental rights are either affected or threatened. That is why we are not satisfied that it is necessary to decide the question about the validity of Section 24 in the present proceeding". 55. In Saghir Ahmad v. State of U. P. (1955 SCR 707 at 726 : AIR 1954 SC 728 : 1954 SCJ 819 ) it was held that when the enactment on the face of it is found to violate the fundamental rights guaranteed under Article 19(1)(g) of the Constitution it must be held to be invalid unless those who support the legislation can bring it within the purview of the exception laid down in Clause 6 of the Article but if the respondents did not place any materials before the Court to establish that the legislation comes within the permissible limits of Clause 6, it is surely not for the appellants to prove negatively that the legislation was not reasonable and was not conducive to the welfare of the community. There are other such instances where this Court has drawn an initial presumption of constitutionality when a statute was impugned as being unconstitutional. 56. This being the legal position in our view when once an impugned law does not affect the fundamental rights of the petitioners as in this case we have founded it to be so, it is not necessary to go into the question of legislative competence or to decide on the validity of Section 5. 57. We have therefore no hesitation in holding that the notification under which the colleges have been affiliated to the Universities is legally valid and from the date specified therein petitioners colleges cease to be affiliated to the Punjab University.
### Response:
1
### Explanation:
This argument however overlooks the basis tents of the sect in that it admits to membership only those Hindus who subscribe to the decalogue and its beliefs in the canons of Vedic interpretation laid down by Swami Dayanand but all outsiders who are non-Hindus such as Muslims and Christians must undergo a ceremony of purification or ShudhiIn our view there is no possible justification for the provisions contained in Clauses 2(1)(a) and 17 of Chapter V of the statutes which decidedly interfere with the rights of management of the petitioners colleges. These provisions cannot therefore be made as conditions of affiliation, the non-compliance of which would involve disaffiliation and consequently they will have to be struck done as offending Article 30(1)Clause 18 however in our view does not suffer from the same vice as Clause 17 because that provision in so far as it is applicable to the minority institution empowers the University to prescribe by regulations governing the service and conduct of teachers which is enacted in the larger interests of the institutions to ensure their efficiency and excellence. It may for instance issue an ordinance in respect of age of superannuation or prescribe minimum qualifications for teachers to be employed by such institutions either generally or in particular subjects. Uniformity in the conditions of service and conduct of teachers in all non-Government colleges would make for harmony and avoid frustration. Of course while the power to make ordinances in respect of the matters referred to is unexceptional the nature of the infringement of the right, if any, under Article 30(1) will depend on the actual purpose and import of the ordinance when made and the manner in which it is likely to affect the administration of the educational institution, about which it is not possible now to predicateIt is apparent therefore that the validity or the invalidity of the impugned law, on the ground of legislative competence should purport to infringe that fundamental rights of the petitioner as a necessary condition of its being adjudicated. But if in fact the law does not, even on the assumption that it is valid, infringe and fundamental rights, this Court will not decide that question in a petition under Article 32. The reason for it is obvious, namely that no petition under Article 32, will be entertained if fundamental rights are not affected and if the impugned law does not affect the fundamental rights it would be contrary to this principle to determine whether that law in fact has legislative competence or notThis being the legal position in our view when once an impugned law does not affect the fundamental rights of the petitioners as in this case we have founded it to be so, it is not necessary to go into the question of legislative competence or to decide on the validity of Section 550. We havetherefore no hesitation in holding that the notification under which the colleges have been affiliated to the Universities is legally valid and from the date specified therein petitioners colleges cease to be affiliated to the Punjab University.
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State of Uttar Pradesh Vs. Radhey Shyam Nigam and Ors. | to object to the acquisition under Section 5-A of the Act was not well founded. Therefore, it could not be said that where such person files his objections the purpose was achieved and that the failure to give public notice in the locality needed not to be treated as fatal to the proceedings. We have examined the observations of this Court at page 13 of judgment upon which reliance has been placed on behalf of the respondent. We are, however, of the opinion that in view of the significant difference in the set of facts with which this Court was dealing with in that case, the observations therein are not relevant for our present purpose. 12. Reliance was also placed on certain observations of this Court in Shri Balaganesan Metals v. M. R. Shanmugham Chetty ((1987) 2 SCC 707 ) where this Court, dealing with the provisions of Section 10(3)(c) of T.N. Buildings (Lease & Rent Control) Act, 1960 observed that it was a settled rule of the interpretation of statues that provisions of an Act should be interpreted in such manner as not render any of its provision otiose unless there where compelling reasons for the court to resort to that extreme contingency. It was submitted that the use of the expression after the date of the publication of the notification in sub-section (4) of Section 17 would become otiose if it is not construct as holding that simultaneous publication of notification under Section 4 and declaration under Section 6 are not permissible. 13. In Raja Satyendra Narayan Singh v. State of Bihar ((1987) 3 SCC 319 ) this Court had to deal with Bihar Land Reform Act, 1950 and it was observed that while interpreting statures plain meaning has to be ascertained and the statute has to be read as a whole and in the context and that statutory rules should be harmoniously read with the statute. The basic principle, it was reiterated at page 325 of the report, of construction of every statute was to find out what is clearly stated and not to speculate upon latent imponderables. The scheme of the Act also must be looked into. In interpreting the statutes it is safer to rely on the obvious meaning rather than to investigate the imponderables. 14. It is true that the expression after the date of the publication of the notification introduced in Section 17(4) can be explained away as making no change from the provision of law by reading it along with the amendment made in Section 4 whereby in different situation in Section 4, the last date publication of the notice has been determined as the date of the publication of the notification and similarly in Section 6 a date of the publication of the notice has been provided for. But the words after the date of the publication of the notification in sub-section (4) of Section 17 read simpliciter clearly indicate that declaration under Section 6 had to made after the publication of the notification meaning thereby subsequent to the date of the publication of the notification. It appears to us that there is nothing in the scheme of the Act which militates against such a construction. At times where emergency provisions are invoked emergent action may be taken but in such a situation in view of the state of law that was before it, the legislature has made a conscious change which cannot be explained away merely because this is as a consequence of the changes in Section 4 and 6 of the Act. 15. Reliance was placed on behalf of the appellant on Lord Howard de Walden v. IRC ((1948) 2 All ER 825) for the proposition that no alteration in meaning by alteration of language can result unless the requirement of the English language demand it or those requirements permit it and the sense of the section demands it. In our opinion, in this case in view of the alteration of the language and meaning and the meaning of the language used and the sense will be in consonance with the interpretation that the change was intended. Similarly, in Hopes v. Hopes ((1948) 2 All ER 920), it was the proposition that changes in the word may be because the draftsman wanted to improve the style. But in this case the style is not improved and the expression after the date as indicate above, become otiose. It is job of the court to interpret the intention of the legislature by the words used. The fairest and the most rational method to interpret the will of the legislature is by exploring its intention at the time when the law was made by signs, the most natural and probable, says Blackstone in his Commentaries on the Laws of England (facsimile of 1st edn. of 1765, University of Chicago Press, 1979 Volume I, p. 59.) And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. The words have to be understood in their usual and most known signification. If that be so, then the legislature must have had some intention in choosing the expression after before date of publication of the notification in sub-section (4) of Section 17 of the Act while making amendment by Amending Act 68 of 1984. It is true that there were some changes giving the meaning of the date of the publication in Section 4(1) and (2) as well as Section 6(2) of the Act. But for that, there was no need for the use of the expression after the date. If that be the position, then we must accept the interpretation put upon the amended clause by the High Court in the judgment under appeal. It will however, be up to the appellant to issue a fresh declaration under Section 6, if so advised, within the period contemplated in the proviso to Section 6(1) of the Act read with its first explanation. | 0[ds]We have examined the observations of this Court at page 13 of judgment upon which reliance has been placed on behalf of the respondent. We are, however, of the opinion that in view of the significant difference in the set of facts with which this Court was dealing with in that case, the observations therein are not relevant for our present purposeIn our opinion, in this case in view of the alteration of the language and meaning and the meaning of the language used and the sense will be in consonance with the interpretation that the change was intendedshort question with which these appeals are concerned is, whether the declaration under Section 6 of the Act could be issued simultaneously along with the notification under Section 4 of the Act in view of the amendment made to Section 17 (4) of theTo decide the question it is necessary to appreciate the scheme of the Act after amendment. Section 4 of the Act envisages publication of preliminary notification where it appears to the appropriate government that land in any locality is needed or is likely to be needed for any public purpose or for a company, it enjoins in such situation that a notification to that effect shall published in the official gazette and in certain other daily newspapers and the substance of the notification is to be given at convenient places in that locality. It is not necessary to dilate on the subsequent procedure as contemplated by Section 4 of the Act. Section 5 of the Act enjoins payment of damages on the acquisition. SectionA of the Act provides for hearing of objection which has been notified under Section 4 of the Act the procedure thereto. Thereafter comes declaration under Section 6 of the Act. The sections provide that after consideration of the report, if any, made under SectionA that a particular land is needed for a public purpose or for a company, a declaration in the manner enjoined in Section 6 of the Act shall be made. The provisions of procedure to be followed on declaration under Section 6 of the Act, are not directly relevant for the purpose of these appeals. Section 17 of the Act with which we are directly concerned here provides with cases of urgency where the government can dispense with some of the provisions of the Act especially regarding inviting objections and hearing of these | 0 | 6,262 | 426 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
to object to the acquisition under Section 5-A of the Act was not well founded. Therefore, it could not be said that where such person files his objections the purpose was achieved and that the failure to give public notice in the locality needed not to be treated as fatal to the proceedings. We have examined the observations of this Court at page 13 of judgment upon which reliance has been placed on behalf of the respondent. We are, however, of the opinion that in view of the significant difference in the set of facts with which this Court was dealing with in that case, the observations therein are not relevant for our present purpose. 12. Reliance was also placed on certain observations of this Court in Shri Balaganesan Metals v. M. R. Shanmugham Chetty ((1987) 2 SCC 707 ) where this Court, dealing with the provisions of Section 10(3)(c) of T.N. Buildings (Lease & Rent Control) Act, 1960 observed that it was a settled rule of the interpretation of statues that provisions of an Act should be interpreted in such manner as not render any of its provision otiose unless there where compelling reasons for the court to resort to that extreme contingency. It was submitted that the use of the expression after the date of the publication of the notification in sub-section (4) of Section 17 would become otiose if it is not construct as holding that simultaneous publication of notification under Section 4 and declaration under Section 6 are not permissible. 13. In Raja Satyendra Narayan Singh v. State of Bihar ((1987) 3 SCC 319 ) this Court had to deal with Bihar Land Reform Act, 1950 and it was observed that while interpreting statures plain meaning has to be ascertained and the statute has to be read as a whole and in the context and that statutory rules should be harmoniously read with the statute. The basic principle, it was reiterated at page 325 of the report, of construction of every statute was to find out what is clearly stated and not to speculate upon latent imponderables. The scheme of the Act also must be looked into. In interpreting the statutes it is safer to rely on the obvious meaning rather than to investigate the imponderables. 14. It is true that the expression after the date of the publication of the notification introduced in Section 17(4) can be explained away as making no change from the provision of law by reading it along with the amendment made in Section 4 whereby in different situation in Section 4, the last date publication of the notice has been determined as the date of the publication of the notification and similarly in Section 6 a date of the publication of the notice has been provided for. But the words after the date of the publication of the notification in sub-section (4) of Section 17 read simpliciter clearly indicate that declaration under Section 6 had to made after the publication of the notification meaning thereby subsequent to the date of the publication of the notification. It appears to us that there is nothing in the scheme of the Act which militates against such a construction. At times where emergency provisions are invoked emergent action may be taken but in such a situation in view of the state of law that was before it, the legislature has made a conscious change which cannot be explained away merely because this is as a consequence of the changes in Section 4 and 6 of the Act. 15. Reliance was placed on behalf of the appellant on Lord Howard de Walden v. IRC ((1948) 2 All ER 825) for the proposition that no alteration in meaning by alteration of language can result unless the requirement of the English language demand it or those requirements permit it and the sense of the section demands it. In our opinion, in this case in view of the alteration of the language and meaning and the meaning of the language used and the sense will be in consonance with the interpretation that the change was intended. Similarly, in Hopes v. Hopes ((1948) 2 All ER 920), it was the proposition that changes in the word may be because the draftsman wanted to improve the style. But in this case the style is not improved and the expression after the date as indicate above, become otiose. It is job of the court to interpret the intention of the legislature by the words used. The fairest and the most rational method to interpret the will of the legislature is by exploring its intention at the time when the law was made by signs, the most natural and probable, says Blackstone in his Commentaries on the Laws of England (facsimile of 1st edn. of 1765, University of Chicago Press, 1979 Volume I, p. 59.) And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. The words have to be understood in their usual and most known signification. If that be so, then the legislature must have had some intention in choosing the expression after before date of publication of the notification in sub-section (4) of Section 17 of the Act while making amendment by Amending Act 68 of 1984. It is true that there were some changes giving the meaning of the date of the publication in Section 4(1) and (2) as well as Section 6(2) of the Act. But for that, there was no need for the use of the expression after the date. If that be the position, then we must accept the interpretation put upon the amended clause by the High Court in the judgment under appeal. It will however, be up to the appellant to issue a fresh declaration under Section 6, if so advised, within the period contemplated in the proviso to Section 6(1) of the Act read with its first explanation.
### Response:
0
### Explanation:
We have examined the observations of this Court at page 13 of judgment upon which reliance has been placed on behalf of the respondent. We are, however, of the opinion that in view of the significant difference in the set of facts with which this Court was dealing with in that case, the observations therein are not relevant for our present purposeIn our opinion, in this case in view of the alteration of the language and meaning and the meaning of the language used and the sense will be in consonance with the interpretation that the change was intendedshort question with which these appeals are concerned is, whether the declaration under Section 6 of the Act could be issued simultaneously along with the notification under Section 4 of the Act in view of the amendment made to Section 17 (4) of theTo decide the question it is necessary to appreciate the scheme of the Act after amendment. Section 4 of the Act envisages publication of preliminary notification where it appears to the appropriate government that land in any locality is needed or is likely to be needed for any public purpose or for a company, it enjoins in such situation that a notification to that effect shall published in the official gazette and in certain other daily newspapers and the substance of the notification is to be given at convenient places in that locality. It is not necessary to dilate on the subsequent procedure as contemplated by Section 4 of the Act. Section 5 of the Act enjoins payment of damages on the acquisition. SectionA of the Act provides for hearing of objection which has been notified under Section 4 of the Act the procedure thereto. Thereafter comes declaration under Section 6 of the Act. The sections provide that after consideration of the report, if any, made under SectionA that a particular land is needed for a public purpose or for a company, a declaration in the manner enjoined in Section 6 of the Act shall be made. The provisions of procedure to be followed on declaration under Section 6 of the Act, are not directly relevant for the purpose of these appeals. Section 17 of the Act with which we are directly concerned here provides with cases of urgency where the government can dispense with some of the provisions of the Act especially regarding inviting objections and hearing of these
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Rejendra Kumar and Ors Vs. Rambhai and Ors | (1) Leave granted.(2) This appeal filed by the children of the deceased Smt. Susheela Bai who died in a motor accident on 12/12/1988, is directed against the judgment rendered by a division bench of the High Court of Andhra Pradesh reviewing order dated 9/8/1999 and reducing the compensation awarded in favour of the appellants. (3) Shorn of unnecessary details, relevant facts leading to the present proceeding may be stated thus: The accident occurred due to a collision between the bus owned by the Andhra Pradesh State Road Transport Corporation, respondent no. 3 herein, and the lorry owned by respondent no. 1 and insured with respondent no. 2. In the said accident, Smt. Susheela Bai, who was a passenger in the bus, sustained multiple injuries and expired on the same day. Her children, who are the appellants herein, filed an application claiming Rs. 3,50,000.00 as compensation for death of their mother. The tribunal on appreciation of the materials on record awarded a sum of Rs. 65,300.00 in favour of the appellants. Feeling aggrieved by the award of the tribunal, the appellants herein filed an appeal in the High Court. The learned single judge who decided the appeal enhanced the compensation and determined the compensation at Rs. 96,000.00 with 12% interest from the date of filing of the claim petition. Still not satisfied with the amount awarded the appellants preferred letters patent appeal no. 176 of 1999, which was decided by the division bench vide the judgment dated 9/8/1999. The division bench further enhanced the compensation amount to Rs. 2,55,000.00 with 12% interest. Thereafter, the Oriental Insurance Company Limited-respondent no. 2 herein, sought review of the judgment on the ground that it was not granted proper opportunity of hearing in the LPA. The division bench by the order dated 3/4/2001 allowed the review petition and reduced the compensation amount from Rs. 2,55,000.00 to Rs. 1,83,000.00. The said order is under challenge in the present appeal. (4) On perusal of the order under challenge it is clear that the High Court without considering the question whether the judgment/order sought to be reviewed suffered from any error, entered upon the exercise of re-appreciating the evidence and on such re-appreciation of evidence re-determined the compensation by reducing the amount to the extent noted earlier. The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed.(5) Coming to the merits of the case, suffice it to say that on perusal of the order, which has been reviewed by the order under challenge did not suffer from any serious illegality, which called for correction by exercise of review jurisdiction. It is relevant to note here that the deceased was holding the post of supervisor in women and child welfare department, government of Karnataka at the time of her death and she was aged about 48 years at that time. The salary drawn by the deceased, as evident from the salary certificate produced as additional evidence was Rs. 2,570.00 p.m.. The multiplier, which had been accepted by the division bench in the previous order, was 10. In the circumstances of the case, multiplier of 10 was rightly taken. Thus on merit also no interference with the order was called for. | 1[ds](4) On perusal of the order under challenge it is clear that the High Court without considering the question whether the judgment/order sought to be reviewed suffered from any error, entered upon the exercise ofthe evidence and on suchned the compensation by reducing the amount to the extent noted earlier. The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed.(5) Coming to the merits of the case, suffice it to say that on perusal of the order, which has been reviewed by the order under challenge did not suffer from any serious illegality, which called for correction by exercise of review jurisdiction. It is relevant to note here that the deceased was holding the post of supervisor in women and child welfare department, government of Karnataka at the time of her death and she was aged about 48 years at that time. The salary drawn by the deceased, as evident from the salary certificate produced as additional evidence was Rs. 2,570.00 p.m.. The multiplier, which had been accepted by the division bench in the previous order, was 10. In the circumstances of the case, multiplier of 10 was rightly taken. Thus on merit also no interference with the order was called for. | 1 | 668 | 294 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
(1) Leave granted.(2) This appeal filed by the children of the deceased Smt. Susheela Bai who died in a motor accident on 12/12/1988, is directed against the judgment rendered by a division bench of the High Court of Andhra Pradesh reviewing order dated 9/8/1999 and reducing the compensation awarded in favour of the appellants. (3) Shorn of unnecessary details, relevant facts leading to the present proceeding may be stated thus: The accident occurred due to a collision between the bus owned by the Andhra Pradesh State Road Transport Corporation, respondent no. 3 herein, and the lorry owned by respondent no. 1 and insured with respondent no. 2. In the said accident, Smt. Susheela Bai, who was a passenger in the bus, sustained multiple injuries and expired on the same day. Her children, who are the appellants herein, filed an application claiming Rs. 3,50,000.00 as compensation for death of their mother. The tribunal on appreciation of the materials on record awarded a sum of Rs. 65,300.00 in favour of the appellants. Feeling aggrieved by the award of the tribunal, the appellants herein filed an appeal in the High Court. The learned single judge who decided the appeal enhanced the compensation and determined the compensation at Rs. 96,000.00 with 12% interest from the date of filing of the claim petition. Still not satisfied with the amount awarded the appellants preferred letters patent appeal no. 176 of 1999, which was decided by the division bench vide the judgment dated 9/8/1999. The division bench further enhanced the compensation amount to Rs. 2,55,000.00 with 12% interest. Thereafter, the Oriental Insurance Company Limited-respondent no. 2 herein, sought review of the judgment on the ground that it was not granted proper opportunity of hearing in the LPA. The division bench by the order dated 3/4/2001 allowed the review petition and reduced the compensation amount from Rs. 2,55,000.00 to Rs. 1,83,000.00. The said order is under challenge in the present appeal. (4) On perusal of the order under challenge it is clear that the High Court without considering the question whether the judgment/order sought to be reviewed suffered from any error, entered upon the exercise of re-appreciating the evidence and on such re-appreciation of evidence re-determined the compensation by reducing the amount to the extent noted earlier. The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed.(5) Coming to the merits of the case, suffice it to say that on perusal of the order, which has been reviewed by the order under challenge did not suffer from any serious illegality, which called for correction by exercise of review jurisdiction. It is relevant to note here that the deceased was holding the post of supervisor in women and child welfare department, government of Karnataka at the time of her death and she was aged about 48 years at that time. The salary drawn by the deceased, as evident from the salary certificate produced as additional evidence was Rs. 2,570.00 p.m.. The multiplier, which had been accepted by the division bench in the previous order, was 10. In the circumstances of the case, multiplier of 10 was rightly taken. Thus on merit also no interference with the order was called for.
### Response:
1
### Explanation:
(4) On perusal of the order under challenge it is clear that the High Court without considering the question whether the judgment/order sought to be reviewed suffered from any error, entered upon the exercise ofthe evidence and on suchned the compensation by reducing the amount to the extent noted earlier. The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed.(5) Coming to the merits of the case, suffice it to say that on perusal of the order, which has been reviewed by the order under challenge did not suffer from any serious illegality, which called for correction by exercise of review jurisdiction. It is relevant to note here that the deceased was holding the post of supervisor in women and child welfare department, government of Karnataka at the time of her death and she was aged about 48 years at that time. The salary drawn by the deceased, as evident from the salary certificate produced as additional evidence was Rs. 2,570.00 p.m.. The multiplier, which had been accepted by the division bench in the previous order, was 10. In the circumstances of the case, multiplier of 10 was rightly taken. Thus on merit also no interference with the order was called for.
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Nectar Beverages Pvt. Ltd Vs. Deputy Commnr. Of Income Tax | 41(1) was to be accepted then it was not necessary for Parliament to enact Section 41(2) in the first instance. In that event, Section 41(1) alone would have sufficed. In our view, Section 41(1), Section 41(2), Section 41(3) and Section 41(4) operated in different spheres. One more aspect needs to be highlighted. Each of the sub-sections to Section 41 deal with different and distinct circumstances. For example, Section 41(1) deals with recoupment of trading liability. Section 41(2) dealt with the balancing charge. Section 41(3) specifically deals with balancing charge in respect of assets relating to scientific research whereas Section 41(4) deals with recovery of bad debts earlier allowed. Therefore, each of the sub-sections deal with different and distinct topics and one cannot read recoupment under one sub-section into another. 9. The entire controversy, therefore, stands resolved if one understands the meaning of "balancing charge". Where any allowance or deduction had earlier been made in respect of any loss, expenditure or trading liability and subsequently the assessee has obtained or realized any amount towards such loss, expenditure or trading liability, Section 41(1) deems such realization/recoupment as assessees income for the year in which it is realized. Section 41(2) as it stood at the material time stated that if in respect of any plant and machinery, any depreciation had been allowed and subsequently such plant and machinery was sold, discarded or destroyed, the assessee might get some value either as a result of sale or insurance or from salvage or compensation thereabout. The necessity to keep Section 41(2) as a provision in addition to Section 41(1) arose from the fact that, in its very nature, depreciation is neither a loss, nor an expenditure, nor a trading liability, referred to in Section 41(1). The depreciation recovered on sale of the capital asset was includible in the total income as balancing charge only under Section 41(2). That concept was foreign to the scheme of Section 41(1). The balancing charge under Section 41(2) arose only where any depreciable asset (building, machinery, plant or furniture) was sold. In fact, when the concept of "block of assets" stood introduced w.e.f. 1.4.1988, Section 41(2) stood deleted. However, even after 1.4.1988, the proviso to Section 32(1)(ii) continued till 1.4.1996 when by the Finance (No. 2) Act, 1995 the bottles and crates even below Rs. 5,000/- came within the "block of assets" as defined under Section 2(11) of the 1961 Act. As stated, this judgment is confined to depreciable assets costing less than Rs. 5,000/- which did not enter the block of assets during the assessment years in question (when Section 41(2) stood deleted). Effect of introducing Finance (No. 2) Act, 1995 w.e.f. 1.4.1996: 10. At the outset, it may be noted that, by the above Finance Act, the first proviso to Section 32(1)(ii) stood deleted w.e.f. 1.4.1996. Consequently, bottles, crates and cylinders whose individual cost did not exceed Rs. 5,000/- also came to be included in the block of assets. 11. Before us, in this batch of civil appeals, we have four Civil Appeals (Civil Appeals arising out of S.L.P. (C) Nos. 8002/09 and 3064/09, Civil Appeal Nos. 356-357/06 and 5858/06) which fall in the period after 1.4.1996. The Lead Matter in this category is M/s Goa Bottling Company Pvt. Ltd. v. Asstt. Commissioner of Income Tax (Civil Appeal Nos. 356-357/06 ). That lead matter is for assessment year 1998-99. M/s Goa Bottling Company Pvt. Ltd. is a company registered under the Companies Act, 1956 and is in the business of manufacture and sale of soft drinks. For the purposes of its business, it bought bottles and crates whose cost per unit did not exceed Rs. 5,000/-. During the year ending 31.3.1998, the company received a sum of Rs. 6,89,91,901 on sale of scrap bottles and crates. The sale proceeds were segregated in two parts:(a) in respect of bottles and crates purchased prior to 31.3.1995; and(b) those purchased after 1.4.1995.In the Return of income filed, the sale proceeds relating to bottles and crates purchased after 1.4.1995 were taken into consideration for the purpose of computation of short term capital gains under Section 50 whereas the sale proceeds relating to bottles and crates purchased prior to 31.3.1995 was not offered for short term capital gains on the ground that the assets stood depreciated at 100% under the proviso to Section 32(1)(ii) and hence did not form part of the block of assets.12. For reasons given hereinabove, we are of the view that bottles and crates purchased prior to 31.3.1995 did not form part of the block of assets, hence, profits on sale of such assets were not taxable as a balancing charge, neither under Section 41(1) nor under Section 50. In respect of bottles and crates purchased after 1.4.1995, on account of deletion of proviso to Section 31(1)(ii) (vide Finance Act, 1995) such bottles and crates formed part of block of assets and consequently such assets purchased after 1.4.1995, in this case, became exigible to capital gains tax under Section 50.13. Before concluding, it may be pointed out that, in the case of Nector Beverages Pvt. Ltd., assessee has earmarked the sale proceeds from bottles and crates as "miscellaneous income" and not as "profit on sale of assets" whereas, in the case of other assessees, including Industrial Oxygen Co. Ltd. (now known as Inox Air Products Ltd.), the said sale proceeds have been earmarked specifically under the Heading "Profits from sale of assets". To this limited extent only, we remit the case(s) of Nectar Beverages Pvt. Ltd. [Civil Appeal Nos. 5291/04, 5293/04 and 359-360/06] to the A.O. to go through the computation submitted by Nectar Beverages Pvt. Ltd. and find out whether earmarking "profits from sale of assets" as "miscellaneous income" has resulted in the understatement of net profits at the pre-Section 28 stage and taxable profits at post-Section 28 stage. In all other cases, sale proceeds have been earmarked as "profits on sale of assets" and in those cases, therefore, there is no question of verification by the A.O.. | 1[ds]11. Before us, in this batch of civil appeals, we have four Civil Appeals (Civil Appeals arising out of S.L.P. (C) Nos. 8002/09 and 3064/09, Civil Appeal Nos.and 5858/06) which fall in the period after 1.4.1996. The Lead Matter in this category is M/s Goa Bottling Company Pvt. Ltd. v. Asstt. Commissioner of Income Tax (Civil Appeal Nos.). That lead matter is for assessment yearM/s Goa Bottling Company Pvt. Ltd. is a company registered under the Companies Act, 1956 and is in the business of manufacture and sale of soft drinks. For the purposes of its business, it bought bottles and crates whose cost per unit did not exceed Rs.During the year ending 31.3.1998, the company received a sum of Rs. 6,89,91,901 on sale of scrap bottles and crates. The sale proceeds were segregated in two parts:(a) in respect of bottles and crates purchased prior to 31.3.1995; and(b) those purchased after 1.4.1995.In the Return of income filed, the sale proceeds relating to bottles and crates purchased after 1.4.1995 were taken into consideration for the purpose of computation of short term capital gains under Section 50 whereas the sale proceeds relating to bottles and crates purchased prior to 31.3.1995 was not offered for short term capital gains on the ground that the assets stood depreciated at 100% under the proviso to Section 32(1)(ii) and hence did not form part of the block of assets.12. For reasons given hereinabove, we are of the view that bottles and crates purchased prior to 31.3.1995 did not form part of the block of assets, hence, profits on sale of such assets were not taxable as a balancing charge, neither under Section 41(1) nor under Section 50. In respect of bottles and crates purchased after 1.4.1995, on account of deletion of proviso to Section 31(1)(ii) (vide Finance Act, 1995) such bottles and crates formed part of block of assets and consequently such assets purchased after 1.4.1995, in this case, became exigible to capital gains tax under Section 50.13. Before concluding, it may be pointed out that, in the case of Nector Beverages Pvt. Ltd., assessee has earmarked the sale proceeds from bottles and crates as "miscellaneous income" and not as "profit on sale of assets" whereas, in the case of other assessees, including Industrial Oxygen Co. Ltd. (now known as Inox Air Products Ltd.), the said sale proceeds have been earmarked specifically under the Heading "Profits from sale of assets". To this limited extent only, we remit the case(s) of Nectar Beverages Pvt. Ltd. [Civil Appeal Nos. 5291/04, 5293/04 andto the A.O. to go through the computation submitted by Nectar Beverages Pvt. Ltd. and find out whether earmarking "profits from sale of assets" as "miscellaneous income" has resulted in the understatement of net profits at the28 stage and taxable profits at28 stage. In all other cases, sale proceeds have been earmarked as "profits on sale of assets" and in those cases, therefore, there is no question of verification by the A.O.. | 1 | 3,125 | 597 | ### 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:
41(1) was to be accepted then it was not necessary for Parliament to enact Section 41(2) in the first instance. In that event, Section 41(1) alone would have sufficed. In our view, Section 41(1), Section 41(2), Section 41(3) and Section 41(4) operated in different spheres. One more aspect needs to be highlighted. Each of the sub-sections to Section 41 deal with different and distinct circumstances. For example, Section 41(1) deals with recoupment of trading liability. Section 41(2) dealt with the balancing charge. Section 41(3) specifically deals with balancing charge in respect of assets relating to scientific research whereas Section 41(4) deals with recovery of bad debts earlier allowed. Therefore, each of the sub-sections deal with different and distinct topics and one cannot read recoupment under one sub-section into another. 9. The entire controversy, therefore, stands resolved if one understands the meaning of "balancing charge". Where any allowance or deduction had earlier been made in respect of any loss, expenditure or trading liability and subsequently the assessee has obtained or realized any amount towards such loss, expenditure or trading liability, Section 41(1) deems such realization/recoupment as assessees income for the year in which it is realized. Section 41(2) as it stood at the material time stated that if in respect of any plant and machinery, any depreciation had been allowed and subsequently such plant and machinery was sold, discarded or destroyed, the assessee might get some value either as a result of sale or insurance or from salvage or compensation thereabout. The necessity to keep Section 41(2) as a provision in addition to Section 41(1) arose from the fact that, in its very nature, depreciation is neither a loss, nor an expenditure, nor a trading liability, referred to in Section 41(1). The depreciation recovered on sale of the capital asset was includible in the total income as balancing charge only under Section 41(2). That concept was foreign to the scheme of Section 41(1). The balancing charge under Section 41(2) arose only where any depreciable asset (building, machinery, plant or furniture) was sold. In fact, when the concept of "block of assets" stood introduced w.e.f. 1.4.1988, Section 41(2) stood deleted. However, even after 1.4.1988, the proviso to Section 32(1)(ii) continued till 1.4.1996 when by the Finance (No. 2) Act, 1995 the bottles and crates even below Rs. 5,000/- came within the "block of assets" as defined under Section 2(11) of the 1961 Act. As stated, this judgment is confined to depreciable assets costing less than Rs. 5,000/- which did not enter the block of assets during the assessment years in question (when Section 41(2) stood deleted). Effect of introducing Finance (No. 2) Act, 1995 w.e.f. 1.4.1996: 10. At the outset, it may be noted that, by the above Finance Act, the first proviso to Section 32(1)(ii) stood deleted w.e.f. 1.4.1996. Consequently, bottles, crates and cylinders whose individual cost did not exceed Rs. 5,000/- also came to be included in the block of assets. 11. Before us, in this batch of civil appeals, we have four Civil Appeals (Civil Appeals arising out of S.L.P. (C) Nos. 8002/09 and 3064/09, Civil Appeal Nos. 356-357/06 and 5858/06) which fall in the period after 1.4.1996. The Lead Matter in this category is M/s Goa Bottling Company Pvt. Ltd. v. Asstt. Commissioner of Income Tax (Civil Appeal Nos. 356-357/06 ). That lead matter is for assessment year 1998-99. M/s Goa Bottling Company Pvt. Ltd. is a company registered under the Companies Act, 1956 and is in the business of manufacture and sale of soft drinks. For the purposes of its business, it bought bottles and crates whose cost per unit did not exceed Rs. 5,000/-. During the year ending 31.3.1998, the company received a sum of Rs. 6,89,91,901 on sale of scrap bottles and crates. The sale proceeds were segregated in two parts:(a) in respect of bottles and crates purchased prior to 31.3.1995; and(b) those purchased after 1.4.1995.In the Return of income filed, the sale proceeds relating to bottles and crates purchased after 1.4.1995 were taken into consideration for the purpose of computation of short term capital gains under Section 50 whereas the sale proceeds relating to bottles and crates purchased prior to 31.3.1995 was not offered for short term capital gains on the ground that the assets stood depreciated at 100% under the proviso to Section 32(1)(ii) and hence did not form part of the block of assets.12. For reasons given hereinabove, we are of the view that bottles and crates purchased prior to 31.3.1995 did not form part of the block of assets, hence, profits on sale of such assets were not taxable as a balancing charge, neither under Section 41(1) nor under Section 50. In respect of bottles and crates purchased after 1.4.1995, on account of deletion of proviso to Section 31(1)(ii) (vide Finance Act, 1995) such bottles and crates formed part of block of assets and consequently such assets purchased after 1.4.1995, in this case, became exigible to capital gains tax under Section 50.13. Before concluding, it may be pointed out that, in the case of Nector Beverages Pvt. Ltd., assessee has earmarked the sale proceeds from bottles and crates as "miscellaneous income" and not as "profit on sale of assets" whereas, in the case of other assessees, including Industrial Oxygen Co. Ltd. (now known as Inox Air Products Ltd.), the said sale proceeds have been earmarked specifically under the Heading "Profits from sale of assets". To this limited extent only, we remit the case(s) of Nectar Beverages Pvt. Ltd. [Civil Appeal Nos. 5291/04, 5293/04 and 359-360/06] to the A.O. to go through the computation submitted by Nectar Beverages Pvt. Ltd. and find out whether earmarking "profits from sale of assets" as "miscellaneous income" has resulted in the understatement of net profits at the pre-Section 28 stage and taxable profits at post-Section 28 stage. In all other cases, sale proceeds have been earmarked as "profits on sale of assets" and in those cases, therefore, there is no question of verification by the A.O..
### Response:
1
### Explanation:
11. Before us, in this batch of civil appeals, we have four Civil Appeals (Civil Appeals arising out of S.L.P. (C) Nos. 8002/09 and 3064/09, Civil Appeal Nos.and 5858/06) which fall in the period after 1.4.1996. The Lead Matter in this category is M/s Goa Bottling Company Pvt. Ltd. v. Asstt. Commissioner of Income Tax (Civil Appeal Nos.). That lead matter is for assessment yearM/s Goa Bottling Company Pvt. Ltd. is a company registered under the Companies Act, 1956 and is in the business of manufacture and sale of soft drinks. For the purposes of its business, it bought bottles and crates whose cost per unit did not exceed Rs.During the year ending 31.3.1998, the company received a sum of Rs. 6,89,91,901 on sale of scrap bottles and crates. The sale proceeds were segregated in two parts:(a) in respect of bottles and crates purchased prior to 31.3.1995; and(b) those purchased after 1.4.1995.In the Return of income filed, the sale proceeds relating to bottles and crates purchased after 1.4.1995 were taken into consideration for the purpose of computation of short term capital gains under Section 50 whereas the sale proceeds relating to bottles and crates purchased prior to 31.3.1995 was not offered for short term capital gains on the ground that the assets stood depreciated at 100% under the proviso to Section 32(1)(ii) and hence did not form part of the block of assets.12. For reasons given hereinabove, we are of the view that bottles and crates purchased prior to 31.3.1995 did not form part of the block of assets, hence, profits on sale of such assets were not taxable as a balancing charge, neither under Section 41(1) nor under Section 50. In respect of bottles and crates purchased after 1.4.1995, on account of deletion of proviso to Section 31(1)(ii) (vide Finance Act, 1995) such bottles and crates formed part of block of assets and consequently such assets purchased after 1.4.1995, in this case, became exigible to capital gains tax under Section 50.13. Before concluding, it may be pointed out that, in the case of Nector Beverages Pvt. Ltd., assessee has earmarked the sale proceeds from bottles and crates as "miscellaneous income" and not as "profit on sale of assets" whereas, in the case of other assessees, including Industrial Oxygen Co. Ltd. (now known as Inox Air Products Ltd.), the said sale proceeds have been earmarked specifically under the Heading "Profits from sale of assets". To this limited extent only, we remit the case(s) of Nectar Beverages Pvt. Ltd. [Civil Appeal Nos. 5291/04, 5293/04 andto the A.O. to go through the computation submitted by Nectar Beverages Pvt. Ltd. and find out whether earmarking "profits from sale of assets" as "miscellaneous income" has resulted in the understatement of net profits at the28 stage and taxable profits at28 stage. In all other cases, sale proceeds have been earmarked as "profits on sale of assets" and in those cases, therefore, there is no question of verification by the A.O..
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MANNALAL CHAMARIA & ANR Vs. STATE OF WEST BENGAL & ANR | Madan B. Lokur, J. 1. The question arising for consideration in these appeals relates to the alleged failure (and consequential effect) of Pradip Sarkar to specifically state in his complaint filed under Sections 138 and 141 of the Negotiable Instruments Act, 1881 that the appellants/accused persons were in charge of and responsible for the conduct of the business of M/s. Heritage Herbs Ltd. of which they were said to be Directors. 2. In a complaint filed on 31st March, 2001, Pradip Sarkar alleged that Heritage Herbs had made an offer for collecting money from the market with a view to allot land to the intending investors. On the basis of the offer made, Pradip Sarkar invested an amount of Rs.1,50,000/- and Heritage Herbs issued three receipt-cum-allotment letters for three plots of land to Pradip Sarkar. At the time of handing over the receipt-cum-allotment letters, Pradip Sarkar was also handed over three cheques of Rs. 61,000/- each post dated to 29th October, 2000. These cheques were issued by Heritage Herbs and were signed by Raj Kumar Chamaria as Chairman of the said concern. 3. All the three cheques were deposited by Pradip Sarkar but were dishonoured by the concerned bank. This led Pradip Sarkar to take steps to issue a notice to and initiate proceedings against Heritage Herbs and Raj Kumar Chamaria under the provisions of Section 138 read with Section 141 of the Negotiable Instruments Act, 1881. 4. During the pendency of the proceedings Raj Kumar Chamaria died on 10th December, 2003. 5. Thereafter, Pradip Sarkar moved an application for impleading the appellants as accused persons. The application was allowed and the appellants were impleaded as accused persons by the concerned Magistrate by an order dated 28th April, 2004 and summons issued to them. 6. Feeling aggrieved by their impleadment and summons issued to them, the appellants preferred Criminal Revision Petitions in the Calcutta High Court, which dismissed the petitions. 7. The appellants have challenged the order of the Calcutta High Court and the only contention urged is that no specific allegations were made against them either in the complaint as originally filed on 31st March, 2001 or in the amended complaint filed on 28th April 2004. 8. We have been taken through both the complaints by learned counsel for the appellants and find that there is no allegation worth the name against any of the appellants in either of the complaints. Insofar as the first complaint is concerned, the appellants were not even made parties and therefore there is no question of any allegations being made against them in that complaint. As far as the second complaint is concerned, the only allegation made is to be found in paragraph 6 thereof which reads as follows:- ?That in this context your petitioner refers to the provisions of Section 141 of the Negotiable Instrument Act, where it has been specifically stated that if the offender is the company then the person who at the time of the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company, other Directors, Manager, Secretary or other officers of the company shall be guilty of the offence, unless the persons referred to above prove otherwise, as per the saving clause of the said section. In section 5 of the Companies Act, also made those officers responsible for crime committed by the company.? 9. The law on the subject is now very well-settled by a series of decisions rendered by this Court and it is not necessary to repeat the views expressed time and again. Suffice it to say, that the law has once again been stated in A.K.Singhania vs. Gujarat State Fertilizer Company Ltd., (2013) 16 SCC 630 to the effect that it is necessary for a complainant to state in the complaint that the person accused was in charge of and responsible for the conduct of the business of the company. Although, no particular form for making such an allegation is prescribed, and it may not be necessary to reproduce the language of Section 138 of the Negotiable Instruments Act, 1881, but a reading of the complaint should show that the substance of the accusation discloses that the accused person was in charge of and responsible for the conduct of the business of the company at the relevant time. From the averment made in the complaint, which is reproduced above, it can safely be said that there is no specific or even a general allegation made against the appellants. 10. Under these circumstances, the complaint against the appellants deserves dismissal. A contrary view taken by the High Court cannot be accepted. | 1[ds]8. We have been taken through both the complaints by learned counsel for the appellants and find that there is no allegation worth the name against any of the appellants in either of the complaints. Insofar as the first complaint is concerned, the appellants were not even made parties and therefore there is no question of any allegations being made against them in that complaint. As far as the second complaint is concerned, the only allegation made is to be found in paragraph 6 thereof which reads as follows:?That in this context your petitioner refers to the provisions of Section 141 of the Negotiable Instrument Act, where it has been specifically stated that if the offender is the company then the person who at the time of the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company, other Directors, Manager, Secretary or other officers of the company shall be guilty of the offence, unless the persons referred to above prove otherwise, as per the saving clause of the said section. In section 5 of the Companies Act, also made those officers responsible for crime committed by the company.?9. The law on the subject is now veryd by a series of decisions rendered by this Court and it is not necessary to repeat the views expressed time and again. Suffice it to say, that the law has once again been stated in A.K.Singhania vs. Gujarat State Fertilizer Company Ltd.to the effect that it is necessary for a complainant to state in the complaint that the person accused was in charge of and responsible for the conduct of the business of the company. Although, no particular form for making such an allegation is prescribed, and it may not be necessary to reproduce the language of Section 138 of the Negotiable Instruments Act, 1881, but a reading of the complaint should show that the substance of the accusation discloses that the accused person was in charge of and responsible for the conduct of the business of the company at the relevant time. From the averment made in the complaint, which is reproduced above, it can safely be said that there is no specific or even a general allegation made against the appellants10. Under these circumstances, the complaint against the appellants deserves dismissal. A contrary view taken by the High Court cannot be accepted. | 1 | 854 | 441 | ### 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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Madan B. Lokur, J. 1. The question arising for consideration in these appeals relates to the alleged failure (and consequential effect) of Pradip Sarkar to specifically state in his complaint filed under Sections 138 and 141 of the Negotiable Instruments Act, 1881 that the appellants/accused persons were in charge of and responsible for the conduct of the business of M/s. Heritage Herbs Ltd. of which they were said to be Directors. 2. In a complaint filed on 31st March, 2001, Pradip Sarkar alleged that Heritage Herbs had made an offer for collecting money from the market with a view to allot land to the intending investors. On the basis of the offer made, Pradip Sarkar invested an amount of Rs.1,50,000/- and Heritage Herbs issued three receipt-cum-allotment letters for three plots of land to Pradip Sarkar. At the time of handing over the receipt-cum-allotment letters, Pradip Sarkar was also handed over three cheques of Rs. 61,000/- each post dated to 29th October, 2000. These cheques were issued by Heritage Herbs and were signed by Raj Kumar Chamaria as Chairman of the said concern. 3. All the three cheques were deposited by Pradip Sarkar but were dishonoured by the concerned bank. This led Pradip Sarkar to take steps to issue a notice to and initiate proceedings against Heritage Herbs and Raj Kumar Chamaria under the provisions of Section 138 read with Section 141 of the Negotiable Instruments Act, 1881. 4. During the pendency of the proceedings Raj Kumar Chamaria died on 10th December, 2003. 5. Thereafter, Pradip Sarkar moved an application for impleading the appellants as accused persons. The application was allowed and the appellants were impleaded as accused persons by the concerned Magistrate by an order dated 28th April, 2004 and summons issued to them. 6. Feeling aggrieved by their impleadment and summons issued to them, the appellants preferred Criminal Revision Petitions in the Calcutta High Court, which dismissed the petitions. 7. The appellants have challenged the order of the Calcutta High Court and the only contention urged is that no specific allegations were made against them either in the complaint as originally filed on 31st March, 2001 or in the amended complaint filed on 28th April 2004. 8. We have been taken through both the complaints by learned counsel for the appellants and find that there is no allegation worth the name against any of the appellants in either of the complaints. Insofar as the first complaint is concerned, the appellants were not even made parties and therefore there is no question of any allegations being made against them in that complaint. As far as the second complaint is concerned, the only allegation made is to be found in paragraph 6 thereof which reads as follows:- ?That in this context your petitioner refers to the provisions of Section 141 of the Negotiable Instrument Act, where it has been specifically stated that if the offender is the company then the person who at the time of the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company, other Directors, Manager, Secretary or other officers of the company shall be guilty of the offence, unless the persons referred to above prove otherwise, as per the saving clause of the said section. In section 5 of the Companies Act, also made those officers responsible for crime committed by the company.? 9. The law on the subject is now very well-settled by a series of decisions rendered by this Court and it is not necessary to repeat the views expressed time and again. Suffice it to say, that the law has once again been stated in A.K.Singhania vs. Gujarat State Fertilizer Company Ltd., (2013) 16 SCC 630 to the effect that it is necessary for a complainant to state in the complaint that the person accused was in charge of and responsible for the conduct of the business of the company. Although, no particular form for making such an allegation is prescribed, and it may not be necessary to reproduce the language of Section 138 of the Negotiable Instruments Act, 1881, but a reading of the complaint should show that the substance of the accusation discloses that the accused person was in charge of and responsible for the conduct of the business of the company at the relevant time. From the averment made in the complaint, which is reproduced above, it can safely be said that there is no specific or even a general allegation made against the appellants. 10. Under these circumstances, the complaint against the appellants deserves dismissal. A contrary view taken by the High Court cannot be accepted.
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8. We have been taken through both the complaints by learned counsel for the appellants and find that there is no allegation worth the name against any of the appellants in either of the complaints. Insofar as the first complaint is concerned, the appellants were not even made parties and therefore there is no question of any allegations being made against them in that complaint. As far as the second complaint is concerned, the only allegation made is to be found in paragraph 6 thereof which reads as follows:?That in this context your petitioner refers to the provisions of Section 141 of the Negotiable Instrument Act, where it has been specifically stated that if the offender is the company then the person who at the time of the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company, other Directors, Manager, Secretary or other officers of the company shall be guilty of the offence, unless the persons referred to above prove otherwise, as per the saving clause of the said section. In section 5 of the Companies Act, also made those officers responsible for crime committed by the company.?9. The law on the subject is now veryd by a series of decisions rendered by this Court and it is not necessary to repeat the views expressed time and again. Suffice it to say, that the law has once again been stated in A.K.Singhania vs. Gujarat State Fertilizer Company Ltd.to the effect that it is necessary for a complainant to state in the complaint that the person accused was in charge of and responsible for the conduct of the business of the company. Although, no particular form for making such an allegation is prescribed, and it may not be necessary to reproduce the language of Section 138 of the Negotiable Instruments Act, 1881, but a reading of the complaint should show that the substance of the accusation discloses that the accused person was in charge of and responsible for the conduct of the business of the company at the relevant time. From the averment made in the complaint, which is reproduced above, it can safely be said that there is no specific or even a general allegation made against the appellants10. Under these circumstances, the complaint against the appellants deserves dismissal. A contrary view taken by the High Court cannot be accepted.
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Bhagaband Colliery Vs. Their Workmen | sirdari commission with effect from 12 April, 1959. You are at liberty to withdraw your gang of miners if you wish."5. When the dispute went before the tribunal, it was contended on behalf of the appellants that as the sirdars were no longer required for recruitment and as they did not do any supervision work, they were not entitled to any sirdari commission. It was also contended that the dispute did not fall in the Second or the Third Schedule to the Industrial Disputes Act, 1947, that the respondents were not workmen as defined in the Act, that they are only contractors and what was paid to them was merely a commission and not a wage as defined in the Act. The tribunal negatived all the contentions raised by the company and held that the company was not justified in stopping the payment of sirdari commission to the respondents.The contentions raised before the tribunal are reiterated before us by Mr. Sanyal, the Additional Solicitor-General. The main questions to be considered is whether the reference was competent. The reference would be competent only if the respondents in so far as they are performing supervisory duties over the labour force supplied by them were workman as defied in the Act and the emoluments they received were wages as defined in the Act. If it is found in their favour on both these points, then the dispute would certainly fall within Sch. III and it would be within the competence of the Government to refer to for adjudication to an industrial tribunal under S.7A of the Act. The tribunal has found as a fact that the respondents were performing supervisory duties with respect to the labour force supplied by them. Now workman as defined in S.2(s) of the Act means"any person ... employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire of reward whether the terms of employment be expressed or implied ..." (only relevant portion quoted).6. It is no doubt true that the respondents were not expressly employed as supervisors by the company but from certain correspondence which has been placed on record it seems clear that the company regarded them as their employee even with respect to the supervisory work. In this connexion we would refer first to item 20 which is a letter dated 19 January, 1953 addressed by the manager to all the miners sirdars. Its reads thus :"Last year this colliery was the worst for excessive work being lost due to two full days being stopped for Pitha Parab."7. You are hereby warned that if you cannot arrange with your miners to keep the stoppage to a maximum of three shifts drastic action will be taken in consultation with the Dy. C.M.E."The threat of drastic action referred to in this letter could not have been possibly addressed to an independent contractor but could well be addressed to an employee. Then there is item 19 addressed to all the persons. That letter is dated 12 July, 1958. The relevant portion of that letter runs thus :"... Please arrange to be in the office on 18 and 19 July 1958 and explain your miners/loaders the real position if any complaint comes to you."8. The instructions contained in this letter could not reasonably be given to a contractor but rather to an employee. The same inference can be drawn from item 18 which is a letter addressed to the miners sirdars and dated 30 December, 1958. There it is said that no worker shall be allowed to go down the mine or work therein in any capacity except with the written authorization to that effect from the manager. Finally there is the letter dated 2 January, 1959 addressed by the manager to all the miners sirdars, the relevant portion of which is as follows :"You are hereby instructed to look after your miners as regards their working places and other facilities.You will keep a check on personification when your own miner goes on leave/sick, etc. If you fail to bring such cases to the management, we will not appoint any further miners in your name.Please note carefully."9. This is clearly indicative of the fact that the company exercised control over the supervisory work which the respondents performed in the mines. The only reasonable inference which we can draw from these letters is that the respondents must be regarded as workmen employed by the company even with respect to the supervisory work performed by them. It would thus follow that the respondents held two kinds of employment under the company, one as clerks, etc., and the other as supervisors of the labour forces supplied by each of them.What was paid to the respondents was no doubt commissions at the rate of 3 pice per tab raised by the miners and a sirdari of Rs. 2 per 100 tugs. According to the definition of "wages "in the Act, all renumeration "capable of being expressed in terms of money" payable to a workmen in respect of his employment or for the work done in such employment would mean wages. The commission payable to sirdars being expressed in terms of money thus falls within the definition.10. The respondents being thus employees even in their capacity as supervisors and being in receipt of wages, a dispute concerning the payment of wages would fall in entry 1 of the Third Schedule to the Act. The Central Government was, therefore, competent to refer the dispute in question to the Central Industrial Tribunal under S.7A of the Act.11. The only other question which has to be considered is whether the respondents were in fact doing any supervisory work. On that point the tribunal, after considering the material before it, arrived at the finding that they are in fact doing supervisory work. That is a finding of fact based on material which the tribunal was entitled to take into consideration and we would not go into the question of its correctness. | 0[ds]6. It is no doubt true that the respondents were not expressly employed as supervisors by the company but from certain correspondence which has been placed on record it seems clear that the company regarded them as their employee even with respect to the supervisory work. In this connexion we would refer first to item 20 which is a letter dated 19 January, 1953 addressed by the manager to all the miners sirdars. Its reads thusyear this colliery was the worst for excessive work being lost due to two full days being stopped for Pitha Parab.You are hereby warned that if you cannot arrange with your miners to keep the stoppage to a maximum of three shifts drastic action will be taken in consultation with the Dy. C.M.E."The threat of drastic action referred to in this letter could not have been possibly addressed to an independent contractor but could well be addressed to an employee. Then there is item 19 addressed to all the persons. That letter is dated 12 July, 1958. The relevant portion of that letter runs thusPlease arrange to be in the office on 18 and 19 July 1958 and explain your miners/loaders the real position if any complaint comes to you.The instructions contained in this letter could not reasonably be given to a contractor but rather to an employee. The same inference can be drawn from item 18 which is a letter addressed to the miners sirdars and dated 30 December, 1958. There it is said that no worker shall be allowed to go down the mine or work therein in any capacity except with the written authorization to that effect from the manager. Finally there is the letter dated 2 January, 1959 addressed by the manager to all the miners sirdars, the relevant portion of which is as followsare hereby instructed to look after your miners as regards their working places and other facilities.You will keep a check on personification when your own miner goes on leave/sick, etc. If you fail to bring such cases to the management, we will not appoint any further miners in your name.Please note carefully.This is clearly indicative of the fact that the company exercised control over the supervisory work which the respondents performed in the mines. The only reasonable inference which we can draw from these letters is that the respondents must be regarded as workmen employed by the company even with respect to the supervisory work performed by them. It would thus follow that the respondents held two kinds of employment under the company, one as clerks, etc., and the other as supervisors of the labour forces supplied by each of them.What was paid to the respondents was no doubt commissions at the rate of 3 pice per tab raised by the miners and a sirdari of Rs. 2 per 100 tugs. According to the definition of "wages "in the Act, all renumeration "capable of being expressed in terms of money" payable to a workmen in respect of his employment or for the work done in such employment would mean wages. The commission payable to sirdars being expressed in terms of money thus falls within the definition.10. The respondents being thus employees even in their capacity as supervisors and being in receipt of wages, a dispute concerning the payment of wages would fall in entry 1 of the Third Schedule to the Act. The Central Government was, therefore, competent to refer the dispute in question to the Central Industrial Tribunal under S.7A of the Act.11.The only other question which has to be considered is whether the respondents were in fact doing any supervisory work.On that point the tribunal, after considering the material before it, arrived at the finding that they are in fact doing supervisory work. That is a finding of fact based on material which the tribunal was entitled to take into consideration and we would not go into the question of its correctness. | 0 | 1,755 | 705 | ### 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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sirdari commission with effect from 12 April, 1959. You are at liberty to withdraw your gang of miners if you wish."5. When the dispute went before the tribunal, it was contended on behalf of the appellants that as the sirdars were no longer required for recruitment and as they did not do any supervision work, they were not entitled to any sirdari commission. It was also contended that the dispute did not fall in the Second or the Third Schedule to the Industrial Disputes Act, 1947, that the respondents were not workmen as defined in the Act, that they are only contractors and what was paid to them was merely a commission and not a wage as defined in the Act. The tribunal negatived all the contentions raised by the company and held that the company was not justified in stopping the payment of sirdari commission to the respondents.The contentions raised before the tribunal are reiterated before us by Mr. Sanyal, the Additional Solicitor-General. The main questions to be considered is whether the reference was competent. The reference would be competent only if the respondents in so far as they are performing supervisory duties over the labour force supplied by them were workman as defied in the Act and the emoluments they received were wages as defined in the Act. If it is found in their favour on both these points, then the dispute would certainly fall within Sch. III and it would be within the competence of the Government to refer to for adjudication to an industrial tribunal under S.7A of the Act. The tribunal has found as a fact that the respondents were performing supervisory duties with respect to the labour force supplied by them. Now workman as defined in S.2(s) of the Act means"any person ... employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire of reward whether the terms of employment be expressed or implied ..." (only relevant portion quoted).6. It is no doubt true that the respondents were not expressly employed as supervisors by the company but from certain correspondence which has been placed on record it seems clear that the company regarded them as their employee even with respect to the supervisory work. In this connexion we would refer first to item 20 which is a letter dated 19 January, 1953 addressed by the manager to all the miners sirdars. Its reads thus :"Last year this colliery was the worst for excessive work being lost due to two full days being stopped for Pitha Parab."7. You are hereby warned that if you cannot arrange with your miners to keep the stoppage to a maximum of three shifts drastic action will be taken in consultation with the Dy. C.M.E."The threat of drastic action referred to in this letter could not have been possibly addressed to an independent contractor but could well be addressed to an employee. Then there is item 19 addressed to all the persons. That letter is dated 12 July, 1958. The relevant portion of that letter runs thus :"... Please arrange to be in the office on 18 and 19 July 1958 and explain your miners/loaders the real position if any complaint comes to you."8. The instructions contained in this letter could not reasonably be given to a contractor but rather to an employee. The same inference can be drawn from item 18 which is a letter addressed to the miners sirdars and dated 30 December, 1958. There it is said that no worker shall be allowed to go down the mine or work therein in any capacity except with the written authorization to that effect from the manager. Finally there is the letter dated 2 January, 1959 addressed by the manager to all the miners sirdars, the relevant portion of which is as follows :"You are hereby instructed to look after your miners as regards their working places and other facilities.You will keep a check on personification when your own miner goes on leave/sick, etc. If you fail to bring such cases to the management, we will not appoint any further miners in your name.Please note carefully."9. This is clearly indicative of the fact that the company exercised control over the supervisory work which the respondents performed in the mines. The only reasonable inference which we can draw from these letters is that the respondents must be regarded as workmen employed by the company even with respect to the supervisory work performed by them. It would thus follow that the respondents held two kinds of employment under the company, one as clerks, etc., and the other as supervisors of the labour forces supplied by each of them.What was paid to the respondents was no doubt commissions at the rate of 3 pice per tab raised by the miners and a sirdari of Rs. 2 per 100 tugs. According to the definition of "wages "in the Act, all renumeration "capable of being expressed in terms of money" payable to a workmen in respect of his employment or for the work done in such employment would mean wages. The commission payable to sirdars being expressed in terms of money thus falls within the definition.10. The respondents being thus employees even in their capacity as supervisors and being in receipt of wages, a dispute concerning the payment of wages would fall in entry 1 of the Third Schedule to the Act. The Central Government was, therefore, competent to refer the dispute in question to the Central Industrial Tribunal under S.7A of the Act.11. The only other question which has to be considered is whether the respondents were in fact doing any supervisory work. On that point the tribunal, after considering the material before it, arrived at the finding that they are in fact doing supervisory work. That is a finding of fact based on material which the tribunal was entitled to take into consideration and we would not go into the question of its correctness.
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6. It is no doubt true that the respondents were not expressly employed as supervisors by the company but from certain correspondence which has been placed on record it seems clear that the company regarded them as their employee even with respect to the supervisory work. In this connexion we would refer first to item 20 which is a letter dated 19 January, 1953 addressed by the manager to all the miners sirdars. Its reads thusyear this colliery was the worst for excessive work being lost due to two full days being stopped for Pitha Parab.You are hereby warned that if you cannot arrange with your miners to keep the stoppage to a maximum of three shifts drastic action will be taken in consultation with the Dy. C.M.E."The threat of drastic action referred to in this letter could not have been possibly addressed to an independent contractor but could well be addressed to an employee. Then there is item 19 addressed to all the persons. That letter is dated 12 July, 1958. The relevant portion of that letter runs thusPlease arrange to be in the office on 18 and 19 July 1958 and explain your miners/loaders the real position if any complaint comes to you.The instructions contained in this letter could not reasonably be given to a contractor but rather to an employee. The same inference can be drawn from item 18 which is a letter addressed to the miners sirdars and dated 30 December, 1958. There it is said that no worker shall be allowed to go down the mine or work therein in any capacity except with the written authorization to that effect from the manager. Finally there is the letter dated 2 January, 1959 addressed by the manager to all the miners sirdars, the relevant portion of which is as followsare hereby instructed to look after your miners as regards their working places and other facilities.You will keep a check on personification when your own miner goes on leave/sick, etc. If you fail to bring such cases to the management, we will not appoint any further miners in your name.Please note carefully.This is clearly indicative of the fact that the company exercised control over the supervisory work which the respondents performed in the mines. The only reasonable inference which we can draw from these letters is that the respondents must be regarded as workmen employed by the company even with respect to the supervisory work performed by them. It would thus follow that the respondents held two kinds of employment under the company, one as clerks, etc., and the other as supervisors of the labour forces supplied by each of them.What was paid to the respondents was no doubt commissions at the rate of 3 pice per tab raised by the miners and a sirdari of Rs. 2 per 100 tugs. According to the definition of "wages "in the Act, all renumeration "capable of being expressed in terms of money" payable to a workmen in respect of his employment or for the work done in such employment would mean wages. The commission payable to sirdars being expressed in terms of money thus falls within the definition.10. The respondents being thus employees even in their capacity as supervisors and being in receipt of wages, a dispute concerning the payment of wages would fall in entry 1 of the Third Schedule to the Act. The Central Government was, therefore, competent to refer the dispute in question to the Central Industrial Tribunal under S.7A of the Act.11.The only other question which has to be considered is whether the respondents were in fact doing any supervisory work.On that point the tribunal, after considering the material before it, arrived at the finding that they are in fact doing supervisory work. That is a finding of fact based on material which the tribunal was entitled to take into consideration and we would not go into the question of its correctness.
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Municipal Corporation Of Greater Bombay Vs. Royal Western India Turf Club | right in allowing the deduction of these expenses also.10. For the relevant year the Club had allotted Rs. 8,66,666/- out of the licence fee of Rs. 13 lacs to the Bombay race-course. Counsel urged that the Club was entitled to a deduction of Rs. 4,33,333/- only as the licence was for a dual purpose, viz., for the premises as a race course and for permission to conduct race meetings on the race-course. It was argued that for the first the burden would be on the lessor and for the second on the tenant. The licence Ex. B shows that it was granted to the Committee of the respondent Club. The licence is not a joint licence in favour of the Corporation and the Club. The application for it was made by the Committee on behalf of the Club and not by the Municipal Corporation. If the licence was for a dual purpose prima facie the landlord would either apply separately or join the Club in the application. The licence shows that the application was for "horse racing in the race courses leased by them" at Mahalaxmi, Bombay and in the Cantonment at Poona. The licence is "granted to the licencees" . "to hold horse races on the said race courses" Condition 1 of the licence prescribes that the Club could hold only 36 race meetings in a year out of which not more than 16 should be allotted to the Poona race-course. The licence is clearly permission to run race meetings on the two race-courses and not an instrument licensing the premises as a race-course. It is manifest that since it is the tenant who would hold the race-meetings the fees payable for the licence is his burden and not that of the lessor. Mr. Desai, however, contended that the scheme of the Bombay Race-Courses Licensing Act, III of 1912 is to license the premises and then to licence the person who runs races on such premises. He relied strongly on the long title of the Act which states that it was an Act to provide for the licensing of race-courses in the State of Bombay. Reliance was also placed on Section 3 (1) which provides that no horse-race shall be held on a race-course for which there is no licence for horse-racing in force. But the charging section is Section 4 under which the owner, the lessee or the occupier of a race-course can apply for a licence for horse racing on a race-course.The licence for horse racing and the obligation to obtain it and to pay the fees therefor is on the person who conducts the business of running the race-course for horse-racing. Such a person can be either the owner, the lessee or the occupier of such a race -course. What Section 3 does is to prohibit horse racing on a race-course unless a licence for horse racing has been obtained in accordance with the provisions of the Act. There is no provision in the Act which Mr. Desai could point out which lays down any licence fee for a race-course. There is therefore nothing in the Act to warrant the construction that the licence obtained under Section 4 has a dual purpose-as contended.Therefore there can be no justification for dividing the burden of the licence fees between the tenant and the landlord. Mr. Desai, however, argued that even so, the respondent-Club was not entitled to claim the deduction of the licence fees because it was not the Club but its Committee which applied for and obtained the licence. The Articles of Association empower the Committee to act in all matters on behalf of the Club. The Committee applied for and obtained the licence on behalf of and as the agent of the Club. The fees were expended on behalf of the Club and as expenses of its business and it is the Club and not the Committee which is licensed to run horse racing on the race course. The Club was therefore entitled to treat the licence fees as its own expenses and claim deduction therefor on the footing that the fees were expenses incurred by it to earn the receipts.11. As regards the wheel tax and the water tax there is no justification in distributing them on the ground that during the time the race-meetings were not held in Bombay it would be the landlords obligation to pay those taxes. In our view there is no basis for disallowing a part of these taxes. These again were expenses incurred by the Club in the ordinary course of its business and were as necessary as other expenses in connection with its business.12. Counsel for the Corporation lastly urged that if these expenses were allowed to be deducted the net rateable value arrived at would be less than the actual rent of Rs. 3,75,000/- payable by the Club to the Corporation and that such a result cannot be contemplated under any method of assessing the rateable value. It is true that the net rateable value as calculated by the High Court comes to Rs. 1, 94, 175/- but the rateable value need not always be equal to the actual rent. As aforesaid, the measure is what a hypothetical tenant is expected to pay for a lease from year to year taking the property as it exists with all its privileges, advantages and burdens. The leased premises no doubt consist of a large tract of land but it must be remembered that under Cl. (1) (f) of the lease the Club is in exclusive possession of only certain portions and the remainder has to he kept open to the public except on race days and when training of horses is held. A large portion of the land has thus to be kept open for being used as playgrounds for the public. It is therefore not surprising that the rateable value determined by the High Court comes to an amount less than the actual rent payable by the Club. | 0[ds]The profits basis method which the assessing authority has adopted in the present case consists in ascertaining the net annual value of the premises which has to be worked out from the profits which are made or which are capable of being made out of the premises. The gross receipts form the starting point of the calculation and they are those shown in the assessees accounts for the account year concluded last before the making of the proposal. When these have been ascertained, the next step is to deduct therefrom the expenses of earning those receipts, the cost of repairs, insurance and other expenses necessary to maintain the premises in a state to command the hypothetical rent. The remaining balance is divisible between the tenant, that is, the tenants share, the landlord, that is, the hypothetical rent or net annual value and rates. The tenants share is often estimated by applying a percentage to the tenants capital or it. may be directly taken as a proportion of the divisible balance or by applying a percentage to the receipts. (See Halsburys Laws of England, 3rd ed. Vol. 3a, 87-88). It must be remembered that it is not the profits which are rateable; they serve to indicate the rent at which the premises might reasonably be expected to let, particularly where profit is the motive of the hypothetical tenant in taking the hereditament.In the instant case, the profits basis method has been adopted for the last several years and approved by the Small Cause Court in several appeals by the respondent-Club. It appears that at one stage the respondent-Club raised an objection regarding its application to the present case. We need not go into the comparative merits of the different methods or into the question whether it can suitably be applied in the present case or not, as Counsel for the Club stated before us that he was not pressing that objection.We therefore proceed on the footing that this method was properly adopted by the assessing authority. But that does not end the controversy, for, even though the principles on which the profits basis method is worked out are fairly well understood, there is nevertheless bound to be controversy in regard to actual working expenses shown in the assessees accounts. A question would often arise whether these expenses are the hypothetical landlords burden or that of the hypothetical tenant. If they are of the former class, they cannot obviously be claimed as deductible expenses for the hypothetical tenant would not take them into account while offering the rent at which he would take the premises onif 10% statutory deduction were considered inadequate looking to the present rate-of prices the legislature has fixed that percentage as a matter of policy and if it is found to be inequitable or otherwise it is for the legislature and not for the Court to alter it. The question, however, is not the inadequacy of deduction allowed in Section 154 (1) but as to which are the costs of repairs contemplated by theis therefore no question of any duplication if expenses incurred by the Club for the maintenance of the Course were to be allowed as a proper deduction. The High Court was therefore right in deducting those expenses from the gross receipts.8. Next is Item 9 which comprises expenses for the upkeep and repairs of the totalisator set up by the Club. The totalisator is an apparatus or a mechanical device for registering and showing the total operations and the number of tickets sold to betters on each horse in a race. Obviously it is maintained to ensure efficient and expeditions working of the races. It does mechanically the work which if done by human labour would necessitate employment of a large number of persons. It is almost an indispensable adjunct of a modern race course and is necessary to declare within the short time available to the betters which are the horses on which heavy betting has been done in a particular race and the total amount of betting on each of the competing horses in that race.The expenses incurred in the upkeep and repair of such an adjunct necessary to an efficient race course must necessarily be regarded as the outgoings of the business. The Corporations contention that it is a machinery and its value therefore is not to be included in rating under Section 154 (2) has no merit as it is part of the necessary equipment of a good race course and its upkeep goes to the making ofis nothing in the lease which would show that the lessor had to maintain the track during the time that race meetings were not held in Bombay.Since it is the Turf Club which ran the race meetings it would be the Clubs obligation and not that of the lessor to look after the tracks upkeep and maintenance and therefore it would be the Club which would bear the costs of its maintenance even during the period when race meetings were not held in Bombay. The distribution of these expenses between the tenant ant the landlord made by the assessing authority and the Small Cause Court cannot therefore be supported on any principle nor can it be sustained on the mere ground that race meetings were held in Bombay only for part of the year. The measure in arriving at the net rateable value under Section 154 (1) is what a hypothetical tenant would pay as rent and that would depend upon the amount of profits earned from race-meetings held on the race-course. To arrive at the correct amount of such profit all expenses reasonably and properly incurred which go to the making of the receipts have to be deducted from the grosserceipts. There was no challenge at any stage that these expenses were not properly incurred for the upkeep and maintenance of the race -course. The High Court therefore was right in allowing the deduction of these expensesis manifest that since it is the tenant who would hold the race-meetings the fees payable for the licence is his burden and not that of thethe charging section is Section 4 under which the owner, the lessee or the occupier of a race-course can apply for a licence for horse racing on a race-course.The licence for horse racing and the obligation to obtain it and to pay the fees therefor is on the person who conducts the business of running the race-course for horse-racing. Such a person can be either the owner, the lessee or the occupier of such a race -course. What Section 3 does is to prohibit horse racing on a race-course unless a licence for horse racing has been obtained in accordance with the provisions of the Act. There is no provision in the Act which Mr. Desai could point out which lays down any licence fee for a race-course. There is therefore nothing in the Act to warrant the construction that the licence obtained under Section 4 has a dual purpose-as contended.Therefore there can be no justification for dividing the burden of the licence fees between the tenant and theArticles of Association empower the Committee to act in all matters on behalf of the Club. The Committee applied for and obtained the licence on behalf of and as the agent of the Club. The fees were expended on behalf of the Club and as expenses of its business and it is the Club and not the Committee which is licensed to run horse racing on the race course. The Club was therefore entitled to treat the licence fees as its own expenses and claim deduction therefor on the footing that the fees were expenses incurred by it to earn the receipts.11. As regards the wheel tax and the water tax there is no justification in distributing them on the ground that during the time the race-meetings were not held in Bombay it would be the landlords obligation to pay those taxes. In our view there is no basis for disallowing a part of these taxes. These again were expenses incurred by the Club in the ordinary course of its business and were as necessary as other expenses in connection with itsis true that the net rateable value as calculated by the High Court comes to Rs. 1, 94, 175/- but the rateable value need not always be equal to the actual rent. As aforesaid, the measure is what a hypothetical tenant is expected to pay for a lease from year to year taking the property as it exists with all its privileges, advantages and burdens. The leased premises no doubt consist of a large tract of land but it must be remembered that under Cl. (1) (f) of the lease the Club is in exclusive possession of only certain portions and the remainder has to he kept open to the public except on race days and when training of horses is held. A large portion of the land has thus to be kept open for being used as playgrounds for the public. It is therefore not surprising that the rateable value determined by the High Court comes to an amount less than the actual rent payable by the Club. | 0 | 4,572 | 1,626 | ### Instruction:
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right in allowing the deduction of these expenses also.10. For the relevant year the Club had allotted Rs. 8,66,666/- out of the licence fee of Rs. 13 lacs to the Bombay race-course. Counsel urged that the Club was entitled to a deduction of Rs. 4,33,333/- only as the licence was for a dual purpose, viz., for the premises as a race course and for permission to conduct race meetings on the race-course. It was argued that for the first the burden would be on the lessor and for the second on the tenant. The licence Ex. B shows that it was granted to the Committee of the respondent Club. The licence is not a joint licence in favour of the Corporation and the Club. The application for it was made by the Committee on behalf of the Club and not by the Municipal Corporation. If the licence was for a dual purpose prima facie the landlord would either apply separately or join the Club in the application. The licence shows that the application was for "horse racing in the race courses leased by them" at Mahalaxmi, Bombay and in the Cantonment at Poona. The licence is "granted to the licencees" . "to hold horse races on the said race courses" Condition 1 of the licence prescribes that the Club could hold only 36 race meetings in a year out of which not more than 16 should be allotted to the Poona race-course. The licence is clearly permission to run race meetings on the two race-courses and not an instrument licensing the premises as a race-course. It is manifest that since it is the tenant who would hold the race-meetings the fees payable for the licence is his burden and not that of the lessor. Mr. Desai, however, contended that the scheme of the Bombay Race-Courses Licensing Act, III of 1912 is to license the premises and then to licence the person who runs races on such premises. He relied strongly on the long title of the Act which states that it was an Act to provide for the licensing of race-courses in the State of Bombay. Reliance was also placed on Section 3 (1) which provides that no horse-race shall be held on a race-course for which there is no licence for horse-racing in force. But the charging section is Section 4 under which the owner, the lessee or the occupier of a race-course can apply for a licence for horse racing on a race-course.The licence for horse racing and the obligation to obtain it and to pay the fees therefor is on the person who conducts the business of running the race-course for horse-racing. Such a person can be either the owner, the lessee or the occupier of such a race -course. What Section 3 does is to prohibit horse racing on a race-course unless a licence for horse racing has been obtained in accordance with the provisions of the Act. There is no provision in the Act which Mr. Desai could point out which lays down any licence fee for a race-course. There is therefore nothing in the Act to warrant the construction that the licence obtained under Section 4 has a dual purpose-as contended.Therefore there can be no justification for dividing the burden of the licence fees between the tenant and the landlord. Mr. Desai, however, argued that even so, the respondent-Club was not entitled to claim the deduction of the licence fees because it was not the Club but its Committee which applied for and obtained the licence. The Articles of Association empower the Committee to act in all matters on behalf of the Club. The Committee applied for and obtained the licence on behalf of and as the agent of the Club. The fees were expended on behalf of the Club and as expenses of its business and it is the Club and not the Committee which is licensed to run horse racing on the race course. The Club was therefore entitled to treat the licence fees as its own expenses and claim deduction therefor on the footing that the fees were expenses incurred by it to earn the receipts.11. As regards the wheel tax and the water tax there is no justification in distributing them on the ground that during the time the race-meetings were not held in Bombay it would be the landlords obligation to pay those taxes. In our view there is no basis for disallowing a part of these taxes. These again were expenses incurred by the Club in the ordinary course of its business and were as necessary as other expenses in connection with its business.12. Counsel for the Corporation lastly urged that if these expenses were allowed to be deducted the net rateable value arrived at would be less than the actual rent of Rs. 3,75,000/- payable by the Club to the Corporation and that such a result cannot be contemplated under any method of assessing the rateable value. It is true that the net rateable value as calculated by the High Court comes to Rs. 1, 94, 175/- but the rateable value need not always be equal to the actual rent. As aforesaid, the measure is what a hypothetical tenant is expected to pay for a lease from year to year taking the property as it exists with all its privileges, advantages and burdens. The leased premises no doubt consist of a large tract of land but it must be remembered that under Cl. (1) (f) of the lease the Club is in exclusive possession of only certain portions and the remainder has to he kept open to the public except on race days and when training of horses is held. A large portion of the land has thus to be kept open for being used as playgrounds for the public. It is therefore not surprising that the rateable value determined by the High Court comes to an amount less than the actual rent payable by the Club.
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right in deducting those expenses from the gross receipts.8. Next is Item 9 which comprises expenses for the upkeep and repairs of the totalisator set up by the Club. The totalisator is an apparatus or a mechanical device for registering and showing the total operations and the number of tickets sold to betters on each horse in a race. Obviously it is maintained to ensure efficient and expeditions working of the races. It does mechanically the work which if done by human labour would necessitate employment of a large number of persons. It is almost an indispensable adjunct of a modern race course and is necessary to declare within the short time available to the betters which are the horses on which heavy betting has been done in a particular race and the total amount of betting on each of the competing horses in that race.The expenses incurred in the upkeep and repair of such an adjunct necessary to an efficient race course must necessarily be regarded as the outgoings of the business. The Corporations contention that it is a machinery and its value therefore is not to be included in rating under Section 154 (2) has no merit as it is part of the necessary equipment of a good race course and its upkeep goes to the making ofis nothing in the lease which would show that the lessor had to maintain the track during the time that race meetings were not held in Bombay.Since it is the Turf Club which ran the race meetings it would be the Clubs obligation and not that of the lessor to look after the tracks upkeep and maintenance and therefore it would be the Club which would bear the costs of its maintenance even during the period when race meetings were not held in Bombay. The distribution of these expenses between the tenant ant the landlord made by the assessing authority and the Small Cause Court cannot therefore be supported on any principle nor can it be sustained on the mere ground that race meetings were held in Bombay only for part of the year. The measure in arriving at the net rateable value under Section 154 (1) is what a hypothetical tenant would pay as rent and that would depend upon the amount of profits earned from race-meetings held on the race-course. To arrive at the correct amount of such profit all expenses reasonably and properly incurred which go to the making of the receipts have to be deducted from the grosserceipts. There was no challenge at any stage that these expenses were not properly incurred for the upkeep and maintenance of the race -course. The High Court therefore was right in allowing the deduction of these expensesis manifest that since it is the tenant who would hold the race-meetings the fees payable for the licence is his burden and not that of thethe charging section is Section 4 under which the owner, the lessee or the occupier of a race-course can apply for a licence for horse racing on a race-course.The licence for horse racing and the obligation to obtain it and to pay the fees therefor is on the person who conducts the business of running the race-course for horse-racing. Such a person can be either the owner, the lessee or the occupier of such a race -course. What Section 3 does is to prohibit horse racing on a race-course unless a licence for horse racing has been obtained in accordance with the provisions of the Act. There is no provision in the Act which Mr. Desai could point out which lays down any licence fee for a race-course. There is therefore nothing in the Act to warrant the construction that the licence obtained under Section 4 has a dual purpose-as contended.Therefore there can be no justification for dividing the burden of the licence fees between the tenant and theArticles of Association empower the Committee to act in all matters on behalf of the Club. The Committee applied for and obtained the licence on behalf of and as the agent of the Club. The fees were expended on behalf of the Club and as expenses of its business and it is the Club and not the Committee which is licensed to run horse racing on the race course. The Club was therefore entitled to treat the licence fees as its own expenses and claim deduction therefor on the footing that the fees were expenses incurred by it to earn the receipts.11. As regards the wheel tax and the water tax there is no justification in distributing them on the ground that during the time the race-meetings were not held in Bombay it would be the landlords obligation to pay those taxes. In our view there is no basis for disallowing a part of these taxes. These again were expenses incurred by the Club in the ordinary course of its business and were as necessary as other expenses in connection with itsis true that the net rateable value as calculated by the High Court comes to Rs. 1, 94, 175/- but the rateable value need not always be equal to the actual rent. As aforesaid, the measure is what a hypothetical tenant is expected to pay for a lease from year to year taking the property as it exists with all its privileges, advantages and burdens. The leased premises no doubt consist of a large tract of land but it must be remembered that under Cl. (1) (f) of the lease the Club is in exclusive possession of only certain portions and the remainder has to he kept open to the public except on race days and when training of horses is held. A large portion of the land has thus to be kept open for being used as playgrounds for the public. It is therefore not surprising that the rateable value determined by the High Court comes to an amount less than the actual rent payable by the Club.
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M/S Band Box P.Ltd Vs. Estate Officer Punjab & Sind Bank | order of the District Judge. Thereafter, this plea has been raised before the learned Single Judge, and also in the Special leave petition before this Court. Mr. Raval has drawn the attention of this Court to the judgment in the case of Dr. Suhas H. Pophale vs. Oriental Insurance Co. Limited reported in 2014 (2) SCALE 223. In this judgment, to which one of us (H.L. Gokhale, J.) was a party, this Court has held that the Public Premises Act cannot be applied to the premises where the occupants have come in possession thereof, prior to the application of the Act, i.e., prior to 16th September, 1958. In the circumstances, Mr. Raval submits that all these orders should be set aside, the appeal should be allowed and the eviction proceedings should be dismissed. 7. On the other hand, it was submitted by Mr. Vikas Singh, learned senior counsel appearing for the respondent-Bank that the appellant had raised at an intermediate stage the plea of not being covered under the Public Premises Act, and had subsequently dropped that plea. They had then relied upon guidelines and, therefore, the plea, which is sought to be raised at a second stage, cannot be allowed to be raised now on the ground of res judicata, as well as constructive res judicata. As far as this objection of Mr. Vikas Singh is concerned, inasmuch as the plea raised by Mr. Raval is based on a legal submission, we would not like the appellant to be denied the opportunity of raising the legal plea and, therefore, we do not accept this submission.8. There are two other submissions raised by Mr. Vikas Singh. Firstly, he drew our attention to the fact that in Ashoka Marketing Limited (supra), there were two properties involved, namely, one that was of Ashoka Marketing Limited and the second was of M/s Sahu Jain Services Limited. Both the parties were occupying the premises concerned since 1.7.1958, i.e., prior to the date when the Public Premises Act became applicable, and in spite of that their submissions have been rejected by the Constitution Bench. This being the position, in his submission, the view taken by a Bench of two Judges in the case of Dr. Suhas H Pophale(supra) is erroneous. We have noted this submission of Mr. Vikas Singh. In paragraph 47 of the judgment in the case of Dr. Suhas H. Pophale, this Court has referred to the judgment in the case of M/s Jain Ink Manufacturing Company vs. L.I.C. reported in (1980) 4 SCC 435 , and has observed that the issue of protection under a welfare legislation being available to the tenant prior to the premises becoming public premises, and the issue of retrospectivity, was not under consideration before the Court in M/s Jain Ink Manufacturing Company (supra). The same holds good for the judgment rendered in Ashoka Marketing Limited (supra), and that being so, since those aspects were not gone into in the judgment of Ashoka Marketing Limited (supra), this Court has examined them in the case of Dr. Suhas H. Pophale (supra). This Court has specifically observed in paragraph 50 thereof that for a moment this Court was not taking any different position from the propositions in Ashoka Marketing Limited (supra). In fact, what was done was to clarify that the Public Premises Act will apply only in certain circumstances. That being so, this submission of Mr. Vikas Singh cannot be accepted. 9. He then referred us to a judgment of another Constitution Bench in the case of Kaiser-I-Hind Pvt. Limited and another vs. National textile Corporation (Maharashtra North) Limited and others (2002) 8 SCC 182 , and particularly paragraphs 40, 42 and 65 thereof. Paragraph 40 of this judgment reads as follows: “40. Once the PP Eviction Act is enacted, then the Bombay Rent Act would not prevail qua the repugnancy between it and the PP Eviction Act. To the extent of repugnancy, the State law would be void under Article 254(1) and the law made by Parliament would prevail. Admittedly, the duration of the Bombay Rent Act was extended up to 31.3.1973 by Maharashtra Act 12 of 1970. The result would be from the date of the coming into force of the PP Eviction Act, the Bombay Rent Act qua the properties of the Government and government companies would be inoperative. For this purpose, language of Article 254(1) is unambiguous and specifically provides that if any provision of law made by the legislature of the State is repugnant to the provision of law made by Parliament, then the law made by Parliament whether passed before or after the law made by the legislature of the State, would prevail. It also makes it clear that the law made by the legislature of the State, to the extent of repugnancy, would be void.” 10. As seen from paragraph 40, quoted above, the judgment clearly says that the Bombay Rent Act would not prevail qua the repugnancy between it and the Public Premises Eviction Act. That aspect has not been contradicted in Dr. Suhas H. Pophales case (supra). It also relies upon the judgment in Ashoka Marketing Limited (supra) which says that the Public Premises Act as well as the State Rent Control Laws are both referable to entries in concurrent list and they operate in their own field. It is only in the area of its own that the State Rent Control Act applies and in its own time frame. The judgment in Dr. Suhas Pophales case accepts that the Public Premises Act will prevail over the Bombay Rent Act to the extent of repugnancy i.e. for eviction of unauthorised tenants and for collection of arrear of rent, but, not prior to 16.9.1958 when the Public Premises Act became applicable. Paragraphs 42 and 65 which are relied upon also do not deal with the aspect of retrospectivity and being protected under the welfare legislation. That being so, it is not possible to accept this submission of Mr. Vikas Singh. 11. | 1[ds]. It is only in the area of its own that the State Rent Control Act applies and in its own time frame. The judgment in Dr. Suhas Pophales case accepts that the Public Premises Act will prevail over the Bombay Rent Act to the extent of repugnancy i.e. for eviction of unauthorised tenants and for collection of arrear of rent, but, not prior to 16.9.1958 when the Public Premises Act became applicable. Paragraphs 42 and 65 which are relied upon also do not deal with the aspect of retrospectivity and being protected under the welfare legislation. | 1 | 1,519 | 107 | ### Instruction:
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order of the District Judge. Thereafter, this plea has been raised before the learned Single Judge, and also in the Special leave petition before this Court. Mr. Raval has drawn the attention of this Court to the judgment in the case of Dr. Suhas H. Pophale vs. Oriental Insurance Co. Limited reported in 2014 (2) SCALE 223. In this judgment, to which one of us (H.L. Gokhale, J.) was a party, this Court has held that the Public Premises Act cannot be applied to the premises where the occupants have come in possession thereof, prior to the application of the Act, i.e., prior to 16th September, 1958. In the circumstances, Mr. Raval submits that all these orders should be set aside, the appeal should be allowed and the eviction proceedings should be dismissed. 7. On the other hand, it was submitted by Mr. Vikas Singh, learned senior counsel appearing for the respondent-Bank that the appellant had raised at an intermediate stage the plea of not being covered under the Public Premises Act, and had subsequently dropped that plea. They had then relied upon guidelines and, therefore, the plea, which is sought to be raised at a second stage, cannot be allowed to be raised now on the ground of res judicata, as well as constructive res judicata. As far as this objection of Mr. Vikas Singh is concerned, inasmuch as the plea raised by Mr. Raval is based on a legal submission, we would not like the appellant to be denied the opportunity of raising the legal plea and, therefore, we do not accept this submission.8. There are two other submissions raised by Mr. Vikas Singh. Firstly, he drew our attention to the fact that in Ashoka Marketing Limited (supra), there were two properties involved, namely, one that was of Ashoka Marketing Limited and the second was of M/s Sahu Jain Services Limited. Both the parties were occupying the premises concerned since 1.7.1958, i.e., prior to the date when the Public Premises Act became applicable, and in spite of that their submissions have been rejected by the Constitution Bench. This being the position, in his submission, the view taken by a Bench of two Judges in the case of Dr. Suhas H Pophale(supra) is erroneous. We have noted this submission of Mr. Vikas Singh. In paragraph 47 of the judgment in the case of Dr. Suhas H. Pophale, this Court has referred to the judgment in the case of M/s Jain Ink Manufacturing Company vs. L.I.C. reported in (1980) 4 SCC 435 , and has observed that the issue of protection under a welfare legislation being available to the tenant prior to the premises becoming public premises, and the issue of retrospectivity, was not under consideration before the Court in M/s Jain Ink Manufacturing Company (supra). The same holds good for the judgment rendered in Ashoka Marketing Limited (supra), and that being so, since those aspects were not gone into in the judgment of Ashoka Marketing Limited (supra), this Court has examined them in the case of Dr. Suhas H. Pophale (supra). This Court has specifically observed in paragraph 50 thereof that for a moment this Court was not taking any different position from the propositions in Ashoka Marketing Limited (supra). In fact, what was done was to clarify that the Public Premises Act will apply only in certain circumstances. That being so, this submission of Mr. Vikas Singh cannot be accepted. 9. He then referred us to a judgment of another Constitution Bench in the case of Kaiser-I-Hind Pvt. Limited and another vs. National textile Corporation (Maharashtra North) Limited and others (2002) 8 SCC 182 , and particularly paragraphs 40, 42 and 65 thereof. Paragraph 40 of this judgment reads as follows: “40. Once the PP Eviction Act is enacted, then the Bombay Rent Act would not prevail qua the repugnancy between it and the PP Eviction Act. To the extent of repugnancy, the State law would be void under Article 254(1) and the law made by Parliament would prevail. Admittedly, the duration of the Bombay Rent Act was extended up to 31.3.1973 by Maharashtra Act 12 of 1970. The result would be from the date of the coming into force of the PP Eviction Act, the Bombay Rent Act qua the properties of the Government and government companies would be inoperative. For this purpose, language of Article 254(1) is unambiguous and specifically provides that if any provision of law made by the legislature of the State is repugnant to the provision of law made by Parliament, then the law made by Parliament whether passed before or after the law made by the legislature of the State, would prevail. It also makes it clear that the law made by the legislature of the State, to the extent of repugnancy, would be void.” 10. As seen from paragraph 40, quoted above, the judgment clearly says that the Bombay Rent Act would not prevail qua the repugnancy between it and the Public Premises Eviction Act. That aspect has not been contradicted in Dr. Suhas H. Pophales case (supra). It also relies upon the judgment in Ashoka Marketing Limited (supra) which says that the Public Premises Act as well as the State Rent Control Laws are both referable to entries in concurrent list and they operate in their own field. It is only in the area of its own that the State Rent Control Act applies and in its own time frame. The judgment in Dr. Suhas Pophales case accepts that the Public Premises Act will prevail over the Bombay Rent Act to the extent of repugnancy i.e. for eviction of unauthorised tenants and for collection of arrear of rent, but, not prior to 16.9.1958 when the Public Premises Act became applicable. Paragraphs 42 and 65 which are relied upon also do not deal with the aspect of retrospectivity and being protected under the welfare legislation. That being so, it is not possible to accept this submission of Mr. Vikas Singh. 11.
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. It is only in the area of its own that the State Rent Control Act applies and in its own time frame. The judgment in Dr. Suhas Pophales case accepts that the Public Premises Act will prevail over the Bombay Rent Act to the extent of repugnancy i.e. for eviction of unauthorised tenants and for collection of arrear of rent, but, not prior to 16.9.1958 when the Public Premises Act became applicable. Paragraphs 42 and 65 which are relied upon also do not deal with the aspect of retrospectivity and being protected under the welfare legislation.
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Kum Michael Vs. Regional Manager Oriental Insurance Co. Ltd. & Another | day living conditions and the extent to which the aspirations of the appellant came to be demolished by suffering a permanent disability for no fault of his, it becomes the responsibility of the respondent to adequately compensate whatever sufferings undergone by the appellant at that time and immediately after the accident as well as the mental agony that is being suffered by the appellant life long. 11. In this context the reliance placed upon by the Tribunal in the decision reported in R.D. Hattangadi V. M/s. Pest Control (India) Pvt. Ltd. and others - AIR 1955 SC 755 was apposite. That was a case where an Advocate of 52 years met with an accident who suffered serious injuries resulting in 100% disability and paraplegia below the waist. The said claimant apart from claiming compensation on other heads made a claim for pain and suffering and loss of amenities of life in a sum of Rs.3 lacs each. As against claim of Rs.6 lacs, the High Court granted a sum of Rs.1 lac. This Court considering the claim for non- pecuniary loss stated as under in paragraphs 9 and 17: "9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those is the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant:(i) medical attendance;(ii) loss of earning of profit up to the date of trial;(iii) Other material loss. So far non-pecuniary damages are concerned, they may include(i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.17. The claim under Sl. No. 16 for pain and suffering and for loss of amenities of life under Sl. No. 17, are claims for non-pecuniary loss. The appellant has claimed lump sum amount of Rs.3,00,000 each under the two heads. The High Court has allowed Rs.1,00,000 against the claims of Rs.6,00,000. When compensation is to be awarded for pain and suffering and loss of amenity of life, the special circumstances of the claimant have to be taken into account including his age, the unusual deprivation he has suffered, the effect thereof on his future life. The amount of compensation for non-pecuniary loss is not easy to determine but the award must reflect that different circumstances have been taken into consideration. According to us, as the appellant was an advocate having good practice in different courts and as because of the accident he has been crippled and can move only on wheelchair, the High Court should have allowed an amount of Rs.1,50,000 in respect of claim for pain and suffering and Rs.1,50,000 in respect of loss of amenities of life. We direct payment of Rs.3,00,000 (Rupees three lakhs only) against the claim of Rs.6,00,000 under the heads Pain and Suffering and Loss of amenities of life." 12. The above-said ratio was subsequently followed in the decision reported in Ashwani Kumar Mishra V. P. Muniam Babu and others - (1999) 4 SCC 22 for enhancing the compensation on account of loss of expectation to life besides disappointment, frustration and mental stress suffered by the claimant therein.13. The said decision was also followed in The Divisional Controller, K.S.R.T.C. V. Mahadeva Shetty and another - AIR 2003 SC 4172 .14. In B.T. Krishnappa V. D.M. United Insurance Co. Ltd. & Anr. - AIR 2010 SC 2630 , where one of us (Hon. Mr. Justice G.S. Singhvi) was a party, has held in paragraphs 17 and 18 as under: "17. Long expectation of life is connected with earning capacity. If earning capacity is reduced, which is the case in the present situation, that impacts life expectancy as well.18. Therefore, while fixing compensation in cases of injury affecting earning capacity the Court must remember:"... No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury so far as money can compensate because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame." [See R.D. Hattangadi v. Pest Control (India) (P) Ltd & others, (1995) 1 SCC 551 :(AIR 1995) SC 755 : 1955 AIR SCW 243) at page 556, para 10.]" 15. Having bestowed our serious consideration and having noted the various disadvantages suffered by the appellant by virtue of the accident, we are convinced that the appellant is entitled for still higher amount than what has been granted by the Tribunal as well as the High Court on account of pain and sufferings as well as loss of amenities. As held by us earlier, though it will be impossible to make a precise assessment of the pain and suffering of the appellant considering the age at which the appellant met with the accident and the consequent disability and also taking note of the deprivement of better prospects in the life of the appellant due to the physical disability suffered, we determine the compensation in a sum of Rs.4 lacs as claimed by the appellant under the following heads: Towards pain and sufferings and permanent disabilityRs.2,80,000/- Towards medical expenses, conveyance, nourishing food and attendant chargesRs.20,000/- Towards loss of amenitiesRs.1,00,000/- TotalRs.4,00,000/- | 1[ds]id ratio was subsequently followed in the decision reported in Ashwani Kumar Mishra V. P. Muniam Babu and others(1999) 4 SCC 22 for enhancing the compensation on account of loss of expectation to life besides disappointment, frustration and mental stress suffered by the claimant therein.13. The said decision was also followed in The Divisional Controller, K.S.R.T.C. V. Mahadeva Shetty and anotherAIR 2003 SC 4172 .14. In B.T. Krishnappa V. D.M. United Insurance Co. Ltd. & Anr.AIR 2010 SC 2630 , where one of us (Hon. Mr. Justice G.S. Singhvi) was a party, has held in paragraphs 17 and 18 asLong expectation of life is connected with earning capacity. If earning capacity is reduced, which is the case in the present situation, that impacts life expectancy as well.18. Therefore, while fixing compensation in cases of injury affecting earning capacity the Court must remember:"... No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury so far as money can compensate because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame." [See R.D. Hattangadi v. Pest Control (India) (P) Ltd & others, (1995) 1 SCC 551 :(AIR 1995) SC 755 : 1955 AIR SCW 243) at page 556, para 10.Having bestowed our serious consideration and having noted the various disadvantages suffered by the appellant by virtue of the accident, we are convinced that the appellant is entitled for still higher amount than what has been granted by the Tribunal as well as the High Court on account of pain and sufferings as well as loss of amenities. As held by us earlier, though it will be impossible to make a precise assessment of the pain and suffering of the appellant considering the age at which the appellant met with the accident and the consequent disability and also taking note of the deprivement of better prospects in the life of the appellant due to the physical disability suffered | 1 | 2,447 | 413 | ### 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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day living conditions and the extent to which the aspirations of the appellant came to be demolished by suffering a permanent disability for no fault of his, it becomes the responsibility of the respondent to adequately compensate whatever sufferings undergone by the appellant at that time and immediately after the accident as well as the mental agony that is being suffered by the appellant life long. 11. In this context the reliance placed upon by the Tribunal in the decision reported in R.D. Hattangadi V. M/s. Pest Control (India) Pvt. Ltd. and others - AIR 1955 SC 755 was apposite. That was a case where an Advocate of 52 years met with an accident who suffered serious injuries resulting in 100% disability and paraplegia below the waist. The said claimant apart from claiming compensation on other heads made a claim for pain and suffering and loss of amenities of life in a sum of Rs.3 lacs each. As against claim of Rs.6 lacs, the High Court granted a sum of Rs.1 lac. This Court considering the claim for non- pecuniary loss stated as under in paragraphs 9 and 17: "9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those is the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant:(i) medical attendance;(ii) loss of earning of profit up to the date of trial;(iii) Other material loss. So far non-pecuniary damages are concerned, they may include(i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.17. The claim under Sl. No. 16 for pain and suffering and for loss of amenities of life under Sl. No. 17, are claims for non-pecuniary loss. The appellant has claimed lump sum amount of Rs.3,00,000 each under the two heads. The High Court has allowed Rs.1,00,000 against the claims of Rs.6,00,000. When compensation is to be awarded for pain and suffering and loss of amenity of life, the special circumstances of the claimant have to be taken into account including his age, the unusual deprivation he has suffered, the effect thereof on his future life. The amount of compensation for non-pecuniary loss is not easy to determine but the award must reflect that different circumstances have been taken into consideration. According to us, as the appellant was an advocate having good practice in different courts and as because of the accident he has been crippled and can move only on wheelchair, the High Court should have allowed an amount of Rs.1,50,000 in respect of claim for pain and suffering and Rs.1,50,000 in respect of loss of amenities of life. We direct payment of Rs.3,00,000 (Rupees three lakhs only) against the claim of Rs.6,00,000 under the heads Pain and Suffering and Loss of amenities of life." 12. The above-said ratio was subsequently followed in the decision reported in Ashwani Kumar Mishra V. P. Muniam Babu and others - (1999) 4 SCC 22 for enhancing the compensation on account of loss of expectation to life besides disappointment, frustration and mental stress suffered by the claimant therein.13. The said decision was also followed in The Divisional Controller, K.S.R.T.C. V. Mahadeva Shetty and another - AIR 2003 SC 4172 .14. In B.T. Krishnappa V. D.M. United Insurance Co. Ltd. & Anr. - AIR 2010 SC 2630 , where one of us (Hon. Mr. Justice G.S. Singhvi) was a party, has held in paragraphs 17 and 18 as under: "17. Long expectation of life is connected with earning capacity. If earning capacity is reduced, which is the case in the present situation, that impacts life expectancy as well.18. Therefore, while fixing compensation in cases of injury affecting earning capacity the Court must remember:"... No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury so far as money can compensate because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame." [See R.D. Hattangadi v. Pest Control (India) (P) Ltd & others, (1995) 1 SCC 551 :(AIR 1995) SC 755 : 1955 AIR SCW 243) at page 556, para 10.]" 15. Having bestowed our serious consideration and having noted the various disadvantages suffered by the appellant by virtue of the accident, we are convinced that the appellant is entitled for still higher amount than what has been granted by the Tribunal as well as the High Court on account of pain and sufferings as well as loss of amenities. As held by us earlier, though it will be impossible to make a precise assessment of the pain and suffering of the appellant considering the age at which the appellant met with the accident and the consequent disability and also taking note of the deprivement of better prospects in the life of the appellant due to the physical disability suffered, we determine the compensation in a sum of Rs.4 lacs as claimed by the appellant under the following heads: Towards pain and sufferings and permanent disabilityRs.2,80,000/- Towards medical expenses, conveyance, nourishing food and attendant chargesRs.20,000/- Towards loss of amenitiesRs.1,00,000/- TotalRs.4,00,000/-
### Response:
1
### Explanation:
id ratio was subsequently followed in the decision reported in Ashwani Kumar Mishra V. P. Muniam Babu and others(1999) 4 SCC 22 for enhancing the compensation on account of loss of expectation to life besides disappointment, frustration and mental stress suffered by the claimant therein.13. The said decision was also followed in The Divisional Controller, K.S.R.T.C. V. Mahadeva Shetty and anotherAIR 2003 SC 4172 .14. In B.T. Krishnappa V. D.M. United Insurance Co. Ltd. & Anr.AIR 2010 SC 2630 , where one of us (Hon. Mr. Justice G.S. Singhvi) was a party, has held in paragraphs 17 and 18 asLong expectation of life is connected with earning capacity. If earning capacity is reduced, which is the case in the present situation, that impacts life expectancy as well.18. Therefore, while fixing compensation in cases of injury affecting earning capacity the Court must remember:"... No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury so far as money can compensate because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame." [See R.D. Hattangadi v. Pest Control (India) (P) Ltd & others, (1995) 1 SCC 551 :(AIR 1995) SC 755 : 1955 AIR SCW 243) at page 556, para 10.Having bestowed our serious consideration and having noted the various disadvantages suffered by the appellant by virtue of the accident, we are convinced that the appellant is entitled for still higher amount than what has been granted by the Tribunal as well as the High Court on account of pain and sufferings as well as loss of amenities. As held by us earlier, though it will be impossible to make a precise assessment of the pain and suffering of the appellant considering the age at which the appellant met with the accident and the consequent disability and also taking note of the deprivement of better prospects in the life of the appellant due to the physical disability suffered
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The Regional Provident Fund Commissioner & Another Vs. Kishco Cutlery Limited & Another | Mangalore v. Karnataka Forest Plantations Corporation Limited, Bangalore, 2000-I-LLJ, 1134, considered the matter thus- "5. In Vitro Pharma Products Company Limited v. R.P.F. Commissioner, 1986 I LLN-971 (Bom), the High Court of Judicature at Bombay has held: "The petitioner-company, when a private limited company, and thereafter a public limited company, was one entity and was responsible for the defaults, being the employer within the meaning of the Act. That entity cannot avoid the liability for penalty on the footing that, at the time when the defaults took place, a management other than the current management had been in office". In R.N.T. Estates Limited v. Union of India and others, 1989 Lab. I.C. NOC 177, Notes of Cases 176-179 Lab. I.C. 1989, while dealing with the liability in case of transfer of establishment it is held that, ‘transferee of establishment becomes jointly and severally liable along with transferor to pay dues under Section 14-B by virtue of Section 17-B.6. It is the contention of learned Counsel for the appellant that in the light of the decisions cited supra, the employer to whom the establishment is transferred shall be liable to pay the contribution and other sums due from the employer under the Act and the order passed by the learned single Judge taking contrary view in the matter has to be set aside. 7. In vitro Pharma’s case, (supra), the employer company which was a private limited company was later converted into a public limited company. The Court considering this aspect held that the employer was one entity before and after its conversion into a public limited company and, therefore, was singularly responsible for the default. In that case there was no ‘other employer’ and the employer remained the same while only there was a change in the management. It is not so in this case where the employer at present is different from the previous employer. The facts of the present case are different from the facts of the case in Vitro Pharma (supra). 8. In R.N.T. Estates Limited’s case, (supra), there was transfer of establishment under a scheme of amalgamation sanctioned by company Court. The Court held that in the event of transfer, the transferee establishment becomes jointly and severally liable alongwith the transferor to pay the dues under Section 14-B by virtue of Section 17-B. The principle laid down in R.N.T. Estates Limited’s case, (supra) does not run contrary to the interpretation of the term ‘contribution and other sums due from the employer’ found in Section 17-B, by the learned single Judge, in the present case. The learned single Judge was perfectly justified in holding that the concept of penalty would arise only when there is a guilt. While it can be said, on interpretation of Section 17-B, that the transferee employer is liable to pay the contribution for the period preceding the transfer, Section 17-B cannot be interpreted to mean that the transferee employer would be liable also to pay penalty for the default committed by the previous employer during the period anterior to the transfer. The penalty as correctly interpreted by the learned single Judge cannot be treated as either ‘contribution’ or as ‘other sums due from the employer’. Such an interpretation would be opposed to the principles of natural justice. Penalty cannot be saddled on somebody who is not guilty."15. It seems to us that the expression "the contribution and other sums due from the employer" under section 17B refers to the ascertained and quantified amount in respect of the period upto the date of transfer. The damages under section 14B become ascertained and quantified sum on its determination. Section 17B does not envisage the imposition of liability on the transferee in case of transfer of establishment of the sum which is neither quantified nor ascertained at the time of transfer. It is not contemplated by section 17B that the transferee-employer should be made liable to pay damages for the default committed by the transferor-employer for the period prior to the transfer. What is contemplated by section 17B is that the contributions or other sums payable under the Act or the schemes by the transferor shall be the liability of the transferee. Surely section 17B does not make the transferee liable for the unascertained and unquantified damages for the default of the erstwhile employer. That is the view of Calcutta and Karnataka High Courts. We concur with their view.16. The learned counsel for the appellant contended that even if section 17B does not make the transferee employer liable for the damages under section 14B, in view of the agreement of transfer between the transferor and transferee, the transferee is liable. The relevant clause of the agreement upon which reliance has been placed reads thus- "the Vendors guarantee that there are no debts and/or liabilities of the co- other than those shown in the books of account of the said Co. as per list ‘B’ attached thereto and signed by the Vendors and that all the wages and other emoluments of the staff have been paid by the Co. and there are no statutory liabilities including Income Tax Sales Tax etc. of the Co. which remained unpaid upto the date of the agreement and if it is discovered at any time that there is/are any bad debts and/or any liabilities and/or unpaid wages or emoluments to staff the same shall be adjusted against the amount outstanding as mentioned in para 2(b) above and 7(d) below and if necessary WILL be further adjusted by the purchasers against the Loan of Rs.23 Lakhs which has been procured by the Vendors from M/s.Kishanchand & Co. as set out in the next para hereof".17. Having considered the aforesaid clause minutely, we find that the aforesaid clause does not make the transferee liable for the damages determined under section 14B. This clause cannot be construed to cover liability in the nature of damages imposed on the transferee for the default in compliance of the provisions of the Act or the Scheme. | 0[ds]A plain reading of Ss.14B, 15(2), 17(5) clearly indicates that the said Sections contemplate a period and or stage prior to any transfer of the establishment. Section 17B of the Act on the other hand contemplates a stage post transfer. The same will be evident from the use of the expression "the employer and the person to whom the establishment is so transferred shall jointly and severally be liable to pay contribution and "other sums due from the employer". So that expression "the employer and other person to whom the establishment is transferred", clearly indicates that the transferee does not come within the meaning of the employer as in S.2(e) of the Act. Under S.17B of the Act the transferee is "the other person". So there is a distinction between "employer" and "the other person". "The other person" comes only after transfer of the establishment either in whole or in part. Transfer of the establishment is contemplated under S. 17B of the Act. The sections prior to that in the Act does not contemplate, either the transfer of the establishment or "the other person". Section 17B does not contemplate any hearing of "the employer" and "the other person" or either of them. But S.contemplates a hearing of "the employer". the absence of the expression "the other person" in S.14B clearly shows that it is a stage prior to the transfer of the establishment. In other wordsclearly shows that it is a stage prior to the transfer of the establishment. In other words S.14B contemplates in its proviso notice upon "the employer", and not upon "the other persons". The three notices dated March 18, 1986 (Annexureto the petition), dated April 10, 1986 (Annexureto the writ petition) and September 3, 1986 (Annexureto the writ petition) are for the period from the month of September, 1968 to November 1968, March 1972 to January 1973 and May 1973 to February 1974. The said period is prior to the transfer of the establishment to petitioner No.1. The transfer was effected from January 1, 1975. So in view of our discussion above notice underfor the purpose of hearing of the employer is to be given upon "the employer" and not upon "the person to whom the establishment is so transferred". In the instant case the person as contemplated in S.17B of the Act is the present petitioner 1. So no notice under S.14B can be served on him. The stage of S.17B has not yet arrived. The "other sums due" has not yet been ascertained and quantified. Unless and until such sum due is ascertained and quantified which liability of the transferee shall be limited to the value of the estates obtained by him by such transfer, no demand can be raised on the transferee, in the instant case the petitioner."14. The Division Bench of Karnataka High Court in the case of Regional Provident Fund Commissioner, Mangalore v. Karnataka Forest Plantations Corporation Limited, Bangalore,1134, considered the matter thus"5. In Vitro Pharma Products Company Limited v. R.P.F. Commissioner, 1986 I(Bom), the High Court of Judicature at Bombay has held: "Thewhen a private limited company, and thereafter a public limited company, was one entity and was responsible for the defaults, being the employer within the meaning of the Act. That entity cannot avoid the liability for penalty on the footing that, at the time when the defaults took place, a management other than the current management had been in office". In R.N.T. Estates Limited v. Union of India and others, 1989 Lab. I.C. NOC 177, Notes of CasesLab. I.C. 1989, while dealing with the liability in case of transfer of establishment it is held that,of establishment becomes jointly and severally liable along with transferor to pay dues under SectionIt is the contention of learned Counsel for the appellant that in the light of the decisions cited supra, the employer to whom the establishment is transferred shall be liable to pay the contribution and other sums due from the employer under the Act and the order passed by the learned single Judge taking contrary view in the matter has to be set aside. 7. In vitrocase, (supra), the employer company which was a private limited company was later converted into a public limited company. The Court considering this aspect held that the employer was one entity before and after its conversion into a public limited company and, therefore, was singularly responsible for the default. In that case there was noand the employer remained the same while only there was a change in the management. It is not so in this case where the employer at present is different from the previous employer. The facts of the present case are different from the facts of the case in Vitro Pharma (supra). 8. In R.N.T. Estatescase, (supra), there was transfer of establishment under a scheme of amalgamation sanctioned by company Court. The Court held that in the event of transfer, the transferee establishment becomes jointly and severally liable alongwith the transferor to pay the dues under Sectionby virtue of SectionThe principle laid down in R.N.T. Estatescase, (supra) does not run contrary to the interpretation of the termand other sums due from thefound in Sectionby the learned single Judge, in the present case. The learned single Judge was perfectly justified in holding that the concept of penalty would arise only when there is a guilt. While it can be said, on interpretation of Sectionthat the transferee employer is liable to pay the contribution for the period preceding the transfer, Sectioncannot be interpreted to mean that the transferee employer would be liable also to pay penalty for the default committed by the previous employer during the period anterior to the transfer. The penalty as correctly interpreted by the learned single Judge cannot be treated as eitherher sums due from theSuch an interpretation would be opposed to the principles of natural justice. Penalty cannot be saddled on somebody who is not guilty."15. It seems to us that the expression "the contributionother sums dueemployer" under section 17B refers to the ascertained and quantified amount in respect of the period upto the date of transfer. The damages under section 14B become ascertained and quantified sum on its determination. Section 17B does not envisage the imposition of liability on the transferee in case of transfer of establishment of the sum which is neither quantified nor ascertained at the time of transfer. It is not contemplated by section 17B that theshould be made liable to pay damages for the default committed by thefor the period prior to the transfer. What is contemplated by section 17B is that the contributions or other sums payable under the Act or the schemes by the transferor shall be the liability of the transferee. Surely section 17B does not make the transferee liable for the unascertained and unquantified damages for the default of the erstwhile employer. That is the view of Calcutta and Karnataka High Courts. We concur with their view.16. The learned counsel for the appellant contended that even if section 17B does not make the transferee employer liable for the damages under section 14B, in view of the agreement of transfer between the transferor and transferee, the transferee is liable. The relevant clause of the agreement upon which reliance has been placed reads thus"the Vendors guarantee that there are no debts and/or liabilities of the coother than those shown in the books of account of the said Co. as per listattached thereto and signed by the Vendors and that all the wages and other emoluments of the staff have been paid by the Co. and there are no statutory liabilities including Income Tax Sales Tax etc. of the Co. which remained unpaid upto the date of the agreement and if it is discovered at any time that there is/are any bad debts and/or any liabilities and/or unpaid wages or emoluments to staff the same shall be adjusted against the amount outstanding as mentioned in para 2(b) above and 7(d) below and if necessary WILL be further adjusted by the purchasers against the Loan of Rs.23 Lakhs which has been procured by the Vendors from M/s.KishanchandCo. as set out in the next para hereof".17. Having considered the aforesaid clause minutely, we find that the aforesaid clause does not make the transferee liable for the damages determined under section 14B. This clause cannot be construed to cover liability in the nature of damages imposed on the transferee for the default in compliance of the provisions of the Act or the Scheme. | 0 | 3,042 | 1,612 | ### 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:
Mangalore v. Karnataka Forest Plantations Corporation Limited, Bangalore, 2000-I-LLJ, 1134, considered the matter thus- "5. In Vitro Pharma Products Company Limited v. R.P.F. Commissioner, 1986 I LLN-971 (Bom), the High Court of Judicature at Bombay has held: "The petitioner-company, when a private limited company, and thereafter a public limited company, was one entity and was responsible for the defaults, being the employer within the meaning of the Act. That entity cannot avoid the liability for penalty on the footing that, at the time when the defaults took place, a management other than the current management had been in office". In R.N.T. Estates Limited v. Union of India and others, 1989 Lab. I.C. NOC 177, Notes of Cases 176-179 Lab. I.C. 1989, while dealing with the liability in case of transfer of establishment it is held that, ‘transferee of establishment becomes jointly and severally liable along with transferor to pay dues under Section 14-B by virtue of Section 17-B.6. It is the contention of learned Counsel for the appellant that in the light of the decisions cited supra, the employer to whom the establishment is transferred shall be liable to pay the contribution and other sums due from the employer under the Act and the order passed by the learned single Judge taking contrary view in the matter has to be set aside. 7. In vitro Pharma’s case, (supra), the employer company which was a private limited company was later converted into a public limited company. The Court considering this aspect held that the employer was one entity before and after its conversion into a public limited company and, therefore, was singularly responsible for the default. In that case there was no ‘other employer’ and the employer remained the same while only there was a change in the management. It is not so in this case where the employer at present is different from the previous employer. The facts of the present case are different from the facts of the case in Vitro Pharma (supra). 8. In R.N.T. Estates Limited’s case, (supra), there was transfer of establishment under a scheme of amalgamation sanctioned by company Court. The Court held that in the event of transfer, the transferee establishment becomes jointly and severally liable alongwith the transferor to pay the dues under Section 14-B by virtue of Section 17-B. The principle laid down in R.N.T. Estates Limited’s case, (supra) does not run contrary to the interpretation of the term ‘contribution and other sums due from the employer’ found in Section 17-B, by the learned single Judge, in the present case. The learned single Judge was perfectly justified in holding that the concept of penalty would arise only when there is a guilt. While it can be said, on interpretation of Section 17-B, that the transferee employer is liable to pay the contribution for the period preceding the transfer, Section 17-B cannot be interpreted to mean that the transferee employer would be liable also to pay penalty for the default committed by the previous employer during the period anterior to the transfer. The penalty as correctly interpreted by the learned single Judge cannot be treated as either ‘contribution’ or as ‘other sums due from the employer’. Such an interpretation would be opposed to the principles of natural justice. Penalty cannot be saddled on somebody who is not guilty."15. It seems to us that the expression "the contribution and other sums due from the employer" under section 17B refers to the ascertained and quantified amount in respect of the period upto the date of transfer. The damages under section 14B become ascertained and quantified sum on its determination. Section 17B does not envisage the imposition of liability on the transferee in case of transfer of establishment of the sum which is neither quantified nor ascertained at the time of transfer. It is not contemplated by section 17B that the transferee-employer should be made liable to pay damages for the default committed by the transferor-employer for the period prior to the transfer. What is contemplated by section 17B is that the contributions or other sums payable under the Act or the schemes by the transferor shall be the liability of the transferee. Surely section 17B does not make the transferee liable for the unascertained and unquantified damages for the default of the erstwhile employer. That is the view of Calcutta and Karnataka High Courts. We concur with their view.16. The learned counsel for the appellant contended that even if section 17B does not make the transferee employer liable for the damages under section 14B, in view of the agreement of transfer between the transferor and transferee, the transferee is liable. The relevant clause of the agreement upon which reliance has been placed reads thus- "the Vendors guarantee that there are no debts and/or liabilities of the co- other than those shown in the books of account of the said Co. as per list ‘B’ attached thereto and signed by the Vendors and that all the wages and other emoluments of the staff have been paid by the Co. and there are no statutory liabilities including Income Tax Sales Tax etc. of the Co. which remained unpaid upto the date of the agreement and if it is discovered at any time that there is/are any bad debts and/or any liabilities and/or unpaid wages or emoluments to staff the same shall be adjusted against the amount outstanding as mentioned in para 2(b) above and 7(d) below and if necessary WILL be further adjusted by the purchasers against the Loan of Rs.23 Lakhs which has been procured by the Vendors from M/s.Kishanchand & Co. as set out in the next para hereof".17. Having considered the aforesaid clause minutely, we find that the aforesaid clause does not make the transferee liable for the damages determined under section 14B. This clause cannot be construed to cover liability in the nature of damages imposed on the transferee for the default in compliance of the provisions of the Act or the Scheme.
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0
### Explanation:
ascertained and quantified. Unless and until such sum due is ascertained and quantified which liability of the transferee shall be limited to the value of the estates obtained by him by such transfer, no demand can be raised on the transferee, in the instant case the petitioner."14. The Division Bench of Karnataka High Court in the case of Regional Provident Fund Commissioner, Mangalore v. Karnataka Forest Plantations Corporation Limited, Bangalore,1134, considered the matter thus"5. In Vitro Pharma Products Company Limited v. R.P.F. Commissioner, 1986 I(Bom), the High Court of Judicature at Bombay has held: "Thewhen a private limited company, and thereafter a public limited company, was one entity and was responsible for the defaults, being the employer within the meaning of the Act. That entity cannot avoid the liability for penalty on the footing that, at the time when the defaults took place, a management other than the current management had been in office". In R.N.T. Estates Limited v. Union of India and others, 1989 Lab. I.C. NOC 177, Notes of CasesLab. I.C. 1989, while dealing with the liability in case of transfer of establishment it is held that,of establishment becomes jointly and severally liable along with transferor to pay dues under SectionIt is the contention of learned Counsel for the appellant that in the light of the decisions cited supra, the employer to whom the establishment is transferred shall be liable to pay the contribution and other sums due from the employer under the Act and the order passed by the learned single Judge taking contrary view in the matter has to be set aside. 7. In vitrocase, (supra), the employer company which was a private limited company was later converted into a public limited company. The Court considering this aspect held that the employer was one entity before and after its conversion into a public limited company and, therefore, was singularly responsible for the default. In that case there was noand the employer remained the same while only there was a change in the management. It is not so in this case where the employer at present is different from the previous employer. The facts of the present case are different from the facts of the case in Vitro Pharma (supra). 8. In R.N.T. Estatescase, (supra), there was transfer of establishment under a scheme of amalgamation sanctioned by company Court. The Court held that in the event of transfer, the transferee establishment becomes jointly and severally liable alongwith the transferor to pay the dues under Sectionby virtue of SectionThe principle laid down in R.N.T. Estatescase, (supra) does not run contrary to the interpretation of the termand other sums due from thefound in Sectionby the learned single Judge, in the present case. The learned single Judge was perfectly justified in holding that the concept of penalty would arise only when there is a guilt. While it can be said, on interpretation of Sectionthat the transferee employer is liable to pay the contribution for the period preceding the transfer, Sectioncannot be interpreted to mean that the transferee employer would be liable also to pay penalty for the default committed by the previous employer during the period anterior to the transfer. The penalty as correctly interpreted by the learned single Judge cannot be treated as eitherher sums due from theSuch an interpretation would be opposed to the principles of natural justice. Penalty cannot be saddled on somebody who is not guilty."15. It seems to us that the expression "the contributionother sums dueemployer" under section 17B refers to the ascertained and quantified amount in respect of the period upto the date of transfer. The damages under section 14B become ascertained and quantified sum on its determination. Section 17B does not envisage the imposition of liability on the transferee in case of transfer of establishment of the sum which is neither quantified nor ascertained at the time of transfer. It is not contemplated by section 17B that theshould be made liable to pay damages for the default committed by thefor the period prior to the transfer. What is contemplated by section 17B is that the contributions or other sums payable under the Act or the schemes by the transferor shall be the liability of the transferee. Surely section 17B does not make the transferee liable for the unascertained and unquantified damages for the default of the erstwhile employer. That is the view of Calcutta and Karnataka High Courts. We concur with their view.16. The learned counsel for the appellant contended that even if section 17B does not make the transferee employer liable for the damages under section 14B, in view of the agreement of transfer between the transferor and transferee, the transferee is liable. The relevant clause of the agreement upon which reliance has been placed reads thus"the Vendors guarantee that there are no debts and/or liabilities of the coother than those shown in the books of account of the said Co. as per listattached thereto and signed by the Vendors and that all the wages and other emoluments of the staff have been paid by the Co. and there are no statutory liabilities including Income Tax Sales Tax etc. of the Co. which remained unpaid upto the date of the agreement and if it is discovered at any time that there is/are any bad debts and/or any liabilities and/or unpaid wages or emoluments to staff the same shall be adjusted against the amount outstanding as mentioned in para 2(b) above and 7(d) below and if necessary WILL be further adjusted by the purchasers against the Loan of Rs.23 Lakhs which has been procured by the Vendors from M/s.KishanchandCo. as set out in the next para hereof".17. Having considered the aforesaid clause minutely, we find that the aforesaid clause does not make the transferee liable for the damages determined under section 14B. This clause cannot be construed to cover liability in the nature of damages imposed on the transferee for the default in compliance of the provisions of the Act or the Scheme.
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Kashi Bai Vs. Sudha Rani Ghose | 1 to 3 was raised because of S. 107 of the Transfer of Property Act but as the question had not been raised or agitated in the trial Court, the High Court allowed defendants 4 to 10 of Suit No. 50 of 1945 to be added in the appeal arising out of Suit No. 16 of 1945 "for complete adjudication of the issues and to avoid multiplicity of proceedings." This question is also no longer in dispute before us. The appellant has brought two appeals against the judgment and two decrees of the High Court of Patna. As the question of ownership of the land in dispute has been decided in favour of the respondents by both the Courts below, that question has not been raised before us and the controversy between the parties is confined solely to the question of adverse possession.7. On behalf of the appellant the learned Attorney-General submitted that the carrying on of the mining operations in the area in dispute even though intermittent as found by the Courts below could only lead to one inference that the possession of the area as well as of the mine was of the appellant and as she had prescribed for the requisite period of 12 years, her possession had matured into ownership by adverse possession. In our opinion the operations carried on by the appellant were inconsistent with the continuous, open and hostile possession or with the assertion of hostile title for the prescribed period of 12 years necessary to constitute adverse possession. It was contended that for the purpose of adverse possession in regard to a coal mine it was not necessary that it should have been worked for 12 years continuously and it was sufficient if the appellant had carried on mining operations for a period of 12 years even with long stoppages as in the instant case. But we are unable to accept this contention.Even though it may not be necessary for the purpose of establishing adverse possession over a coal mining area to carry on mining operation continuously for a period of 12 years, continuous possession of the mining area and the mine would be a necessary ingredient to establish adverse possession. What has been proved by the appellant is that the two inclines opened by Bennett were worked in 1917 or 1918 by the predecessor in interest of the appellant, there were no mining operations till 1923 when they were restarted and were continued till 1926. The operations ceased in 1926 and were recommenced in 1931 and carried on till 1933 when they ceased again till 1939 and whether they were carried on in 1939 or not is not quite clear but there were no operations from 1939 to 1944 when they were recommenced by the appellant. During the period when there were no mining operations no kind of possession of the appellant has been proved and thus the presumption of law is not rebutted that during the period when the operations had ceased to be carried on the possession would revert to the true owner.8. Nageshwar Bux Roy v. Bengal Coal Co., 58 Ind App 29 : (AIR 1931 P C 186) (A) which was relied upon by the learned Attorney-General does not support his contention. In that case the company claiming adverse possession had placed facts which were consistent with the assertion of rights to minerals in the whole village to which the company claimed adverse possession. They openly sank pits at three different places, two of them being 1/2 mile distant from the 3rd. The company selected the places where they were to dig up the pits at their own discretion, brought their plant or machinery on the ground and erected bungalows for their employees. There was no concealment on the part of the company and they behaved openly as persons in possession of not one pit but all mineral fields underlying the whole village and they throughout claimed to be entitled to sink pits anywhere in the village they chose. The company was under a bona fide belief that under their lease they were entitled to work the minerals any where in the area. In these circumstances the Privy Council held the suit to be barred by Art. 144 of the Limitation Act as the company had been in adverse possession of the minerals under the whole village for more than 12 years. It was pointed out by Lord Macmillan at p. 35 (of Ind App) : (at p. 188 of AIR),"Possession is a question of fact and the extent of possession may be an inference of fact."And at p. 37 (of Ind App) : (at p. 189 of AIR) it was observed :"Their Lordships are not at all disposed to negative or to weaken the principle that as a general rule where title is founded on an adverse possession the title will be limited to that area of which actual possession has been enjoyed. But the application of this general rule must depend upon the facts of the particular case."9. The finding in favour of adverse possession in that case must be confined to the facts of that particular case.10. Another case relied upon by the learned Attorney-General was Secretary of State for India v. Debendra Lal Khan, 61 Ind App 78 : (AIR 1934 P C 23) (B). There a zamindar claimed title to a fishery in a navigable river by adverse possession against the Crown. It was held that possession may be adequate in continuity so as to be adverse even though the proved acts of possession do not cover every moment of the period. That was a case dealing with fisheries. It is true that to establish adverse possession nature of possession may vary. In the instant case no such possession has been proved which taking into consideration the nature of possession and the nature of the object possessed would lead to the only inference that the appellant had perfected her title by adverse possession | 0[ds]In our opinion the operations carried on by the appellant were inconsistent with the continuous, open and hostile possession or with the assertion of hostile title for the prescribed period of 12 years necessary to constitute adversewe are unable to accept this contention.Even though it may not be necessary for the purpose of establishing adverse possession over a coal mining area to carry on mining operation continuously for a period of 12 years, continuous possession of the mining area and the mine would be a necessary ingredient to establish adverse possession. What has been proved by the appellant is that the two inclines opened by Bennett were worked in 1917 or 1918 by the predecessor in interest of the appellant, there were no mining operations till 1923 when they were restarted and were continued tillThe operations ceased in 1926 and were recommenced in 1931 and carried on till 1933 when they ceased again till 1939 and whether they were carried on in 1939 or not is not quite clear but there were no operations from 1939 to 1944 when they were recommenced by the appellant. During the period when there were no mining operations no kind of possession of the appellant has been proved and thus the presumption of law is not rebutted that during the period when the operations had ceased to be carried on the possession would revert to the true owner. | 0 | 2,726 | 244 | ### 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 to 3 was raised because of S. 107 of the Transfer of Property Act but as the question had not been raised or agitated in the trial Court, the High Court allowed defendants 4 to 10 of Suit No. 50 of 1945 to be added in the appeal arising out of Suit No. 16 of 1945 "for complete adjudication of the issues and to avoid multiplicity of proceedings." This question is also no longer in dispute before us. The appellant has brought two appeals against the judgment and two decrees of the High Court of Patna. As the question of ownership of the land in dispute has been decided in favour of the respondents by both the Courts below, that question has not been raised before us and the controversy between the parties is confined solely to the question of adverse possession.7. On behalf of the appellant the learned Attorney-General submitted that the carrying on of the mining operations in the area in dispute even though intermittent as found by the Courts below could only lead to one inference that the possession of the area as well as of the mine was of the appellant and as she had prescribed for the requisite period of 12 years, her possession had matured into ownership by adverse possession. In our opinion the operations carried on by the appellant were inconsistent with the continuous, open and hostile possession or with the assertion of hostile title for the prescribed period of 12 years necessary to constitute adverse possession. It was contended that for the purpose of adverse possession in regard to a coal mine it was not necessary that it should have been worked for 12 years continuously and it was sufficient if the appellant had carried on mining operations for a period of 12 years even with long stoppages as in the instant case. But we are unable to accept this contention.Even though it may not be necessary for the purpose of establishing adverse possession over a coal mining area to carry on mining operation continuously for a period of 12 years, continuous possession of the mining area and the mine would be a necessary ingredient to establish adverse possession. What has been proved by the appellant is that the two inclines opened by Bennett were worked in 1917 or 1918 by the predecessor in interest of the appellant, there were no mining operations till 1923 when they were restarted and were continued till 1926. The operations ceased in 1926 and were recommenced in 1931 and carried on till 1933 when they ceased again till 1939 and whether they were carried on in 1939 or not is not quite clear but there were no operations from 1939 to 1944 when they were recommenced by the appellant. During the period when there were no mining operations no kind of possession of the appellant has been proved and thus the presumption of law is not rebutted that during the period when the operations had ceased to be carried on the possession would revert to the true owner.8. Nageshwar Bux Roy v. Bengal Coal Co., 58 Ind App 29 : (AIR 1931 P C 186) (A) which was relied upon by the learned Attorney-General does not support his contention. In that case the company claiming adverse possession had placed facts which were consistent with the assertion of rights to minerals in the whole village to which the company claimed adverse possession. They openly sank pits at three different places, two of them being 1/2 mile distant from the 3rd. The company selected the places where they were to dig up the pits at their own discretion, brought their plant or machinery on the ground and erected bungalows for their employees. There was no concealment on the part of the company and they behaved openly as persons in possession of not one pit but all mineral fields underlying the whole village and they throughout claimed to be entitled to sink pits anywhere in the village they chose. The company was under a bona fide belief that under their lease they were entitled to work the minerals any where in the area. In these circumstances the Privy Council held the suit to be barred by Art. 144 of the Limitation Act as the company had been in adverse possession of the minerals under the whole village for more than 12 years. It was pointed out by Lord Macmillan at p. 35 (of Ind App) : (at p. 188 of AIR),"Possession is a question of fact and the extent of possession may be an inference of fact."And at p. 37 (of Ind App) : (at p. 189 of AIR) it was observed :"Their Lordships are not at all disposed to negative or to weaken the principle that as a general rule where title is founded on an adverse possession the title will be limited to that area of which actual possession has been enjoyed. But the application of this general rule must depend upon the facts of the particular case."9. The finding in favour of adverse possession in that case must be confined to the facts of that particular case.10. Another case relied upon by the learned Attorney-General was Secretary of State for India v. Debendra Lal Khan, 61 Ind App 78 : (AIR 1934 P C 23) (B). There a zamindar claimed title to a fishery in a navigable river by adverse possession against the Crown. It was held that possession may be adequate in continuity so as to be adverse even though the proved acts of possession do not cover every moment of the period. That was a case dealing with fisheries. It is true that to establish adverse possession nature of possession may vary. In the instant case no such possession has been proved which taking into consideration the nature of possession and the nature of the object possessed would lead to the only inference that the appellant had perfected her title by adverse possession
### Response:
0
### Explanation:
In our opinion the operations carried on by the appellant were inconsistent with the continuous, open and hostile possession or with the assertion of hostile title for the prescribed period of 12 years necessary to constitute adversewe are unable to accept this contention.Even though it may not be necessary for the purpose of establishing adverse possession over a coal mining area to carry on mining operation continuously for a period of 12 years, continuous possession of the mining area and the mine would be a necessary ingredient to establish adverse possession. What has been proved by the appellant is that the two inclines opened by Bennett were worked in 1917 or 1918 by the predecessor in interest of the appellant, there were no mining operations till 1923 when they were restarted and were continued tillThe operations ceased in 1926 and were recommenced in 1931 and carried on till 1933 when they ceased again till 1939 and whether they were carried on in 1939 or not is not quite clear but there were no operations from 1939 to 1944 when they were recommenced by the appellant. During the period when there were no mining operations no kind of possession of the appellant has been proved and thus the presumption of law is not rebutted that during the period when the operations had ceased to be carried on the possession would revert to the true owner.
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COMMISSIONER OF MUNICIPAL ADMINISTRATION Vs. M.C. SHEELA EVANJALIN | Court for the reason that she is qualified for such post. The qualification for the post is not the criteria for appointment to the public post as any appointment to a public post cannot be made merely on the basis of possessing required educational qualifications. Any appointment to a public post can be made in the manner provided by the applicable recruitment rules in terms of law enacted under Article 309 of the Constitution of India or the Rules made in terms of proviso to Article 309 of the Constitution of India. In the absence of law and/or the rules, the executive instructions may also prescribe the eligibility conditions including the educational qualifications, experience, age limit for appointment to the post. In the present case, the respondent sought appointment as Revenue Assistant only on the basis of the fact that she possesses Diploma in Civil Engineering. The possession of Diploma in Civil Engineering is not entitlement to a public post unless such post is advertised and opportunity is given to all the eligible candidates to apply for the post in terms of applicable rules. 16. The fact remains that the Commissioner, Kuzhithurai Municipality has appointed the respondent as Revenue Assistant way back in 2006. However, the greed of the respondent for further promotion or appointment to the higher post did not end. She wanted to be appointed as Town Planning Officer again on the strength of her qualification of Diploma in Civil Engineering. As per the facts on record, the post of Town Planning Inspector is governed by the T amil Nadu Municipal Town Planning Service Rules, 1970 and that such post can be filled up either by way of promotion or by direct recruitment. The respondent is not in the feeder cadre for appointment to the post of Town Planning Inspector. In the absence of her being in feeder cadre, the High Court committed illegality in directing the consideration for appointment of the respondent to the post of Town Planning Inspector. It may be noticed that Town Planning Officer Grade II is a promotional post from amongst Town Planning Inspectors, who has worked in regular capacity for a period of ten years as per the Rules. 17. The stand of the respondent that the post of Town Planning Inspector is governed by the General Rules, is not made out as such Rules provide for promotion for the post of Revenue Assistant to the post of Revenue Inspector but not to the post of Town Planning Inspector. The Town Planning Assistant Draughtsman is the feeder cadre for promotion of Town Planning Inspector and that the Revenue Assistant is not the feeder cadre nor the respondent can claim any right to appointment only on the basis of her educational qualifications. 18. We find the manner in which the High Court has issued directions time and again shows utter disregard to the basic principles of law and then calling upon the officers to face contempt if the directions are not complied with. Such directions are wholly without any legal basis and, thus, cannot be sustained. 19. At this stage, it may be mentioned that learned counsel for the respondent referred to appointment to the post of Town Planning Inspector from the post of Revenue Assistant in the Nagercoil Municipality. We find that such appointment may be illegal and not warranted by the recruitment rules. It is well settled that there cannot be any parity in the illegality. Once the appointment to the post of Town Planning Inspector is not contemplated from amongst the Revenue Inspectors, the respondent cannot claim any parity on the basis of illegality committed by Nagercoil Municipality. Reference can be made to Chandigarh Administration & Anr. v. Jagjit Singh & Anr. (1995) 1 SCC 745 and Kulwinder Pal Singh & Anr. v. State of Punjab & Ors.(2016) 6 SCC 532 . This Court in Kulwinder Pal Singh, held as under: 16. The learned counsel for the appellants contended that when the other candidates were appointed in the post against dereserved category, the same benefit should also be extended to the appellants. Article 14 of the Constitution of India is not to perpetuate illegality and it does not envisage negative equalities. In State of U.P . v. Rajkumar Sharma [State of U.P . v. Rajkumar Sharma, (2006) 3 SCC 330 : 2006 SCC (L&S) 565] it was held as under: (SCC p. 337, para 15)?15. Even if in some cases appointments have been made by mistake or wrongly, that does not confer any right on another person. Article 14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake. (See Sneh Prabha v. State of U.P . [Sneh Prabha v. State of U.P ., (1996) 7 SCC 426 ]; Jaipur Development Authority v. Daulat Mal Jain [Jaipur Development Authority v. Daulat Mal Jain, (1997) 1 SCC 35 ] ; State of Haryana v. Ram Kumar Mann [State of Haryana v. Ram Kumar Mann, (1997) 3 SCC 321 : 1997 SCC (L&S) 801] ; Faridabad CT Scan Centre v. DG, Health Services [Faridabad CT Scan Centre v. DG, Health Services, (1997) 7 SCC 752 ] ; Jalandhar Improvement Trust v. Sampuran Singh [Jalandhar Improvement Trust v. Sampuran Singh, (1999) 3 SCC 494 ]; State of Punjab v. Rajeev Sarwal [State of Punjab v. Rajeev Sarwal, (1999) 9 SCC 240 : 1999 SCC (L&S) 1171] ; Yogesh Kumar v. Govt. (NCT of Delhi) [Yogesh Kumar v. Govt. (NCT of Delhi), (2003) 3 SCC 548 : 2003 SCC (L&S) 346] ; Union of India v. International Trading Co. [Union of India v. International Trading Co., (2003) 5 SCC 437 ] and Kastha Niwarak Grahnirman Sahakari Sanstha Maryadit v. Indore Development Authority [Kastha Niwarak Grahnirman Sahakari Sanstha Maryadit v. Indore Development Authority, (2006) 2 SCC 604 ].)? Merely because some persons have been granted benefit illegally or by mistake, it does not confer right upon the appellants to claim equality.? | 1[ds]15. We find that the orders of the High Court are patently illegal and unwarranted. The respondent was initially appointed as Road Gang Mazdoor. She came to be appointed as Revenue Assistant in pursuance of the orders passed by the Madras High Court for the reason that she is qualified for such post. The qualification for the post is not the criteria for appointment to the public post as any appointment to a public post cannot be made merely on the basis of possessing required educational qualifications. Any appointment to a public post can be made in the manner provided by the applicable recruitment rules in terms of law enacted under Article 309 of the Constitution of India or the Rules made in terms of proviso to Article 309 of the Constitution of India. In the absence of law and/or the rules, the executive instructions may also prescribe the eligibility conditions including the educational qualifications, experience, age limit for appointment to the post. In the present case, the respondent sought appointment as Revenue Assistant only on the basis of the fact that she possesses Diploma in Civil Engineering. The possession of Diploma in Civil Engineering is not entitlement to a public post unless such post is advertised and opportunity is given to all the eligible candidates to apply for the post in terms of applicable rules.The fact remains that the Commissioner, Kuzhithurai Municipality has appointed the respondent as Revenue Assistant way back in 2006. However, the greed of the respondent for further promotion or appointment to the higher post did not end. She wanted to be appointed as Town Planning Officer again on the strength of her qualification of Diploma in Civil Engineering. As per the facts on record, the post of Town Planning Inspector is governed by the T amil Nadu Municipal Town Planning Service Rules, 1970 and that such post can be filled up either by way of promotion or by direct recruitment. The respondent is not in the feeder cadre for appointment to the post of Town Planning Inspector. In the absence of her being in feeder cadre, the High Court committed illegality in directing the consideration for appointment of the respondent to the post of Town Planning Inspector. It may be noticed that Town Planning Officer Grade II is a promotional post from amongst Town Planning Inspectors, who has worked in regular capacity for a period of ten years as per the Rules.The stand of the respondent that the post of Town Planning Inspector is governed by the General Rules, is not made out as such Rules provide for promotion for the post of Revenue Assistant to the post of Revenue Inspector but not to the post of Town Planning Inspector. The Town Planning Assistant Draughtsman is the feeder cadre for promotion of Town Planning Inspector and that the Revenue Assistant is not the feeder cadre nor the respondent can claim any right to appointment only on the basis of her educational qualifications.We find the manner in which the High Court has issued directions time and again shows utter disregard to the basic principles of law and then calling upon the officers to face contempt if the directions are not complied with. Such directions are wholly without any legal basis and, thus, cannot befind that such appointment may be illegal and not warranted by the recruitment rules. It is well settled that there cannot be any parity in the illegality. Once the appointment to the post of Town Planning Inspector is not contemplated from amongst the Revenue Inspectors, the respondent cannot claim any parity on the basis of illegality committed by Nagercoil Municipality. | 1 | 2,851 | 648 | ### 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:
Court for the reason that she is qualified for such post. The qualification for the post is not the criteria for appointment to the public post as any appointment to a public post cannot be made merely on the basis of possessing required educational qualifications. Any appointment to a public post can be made in the manner provided by the applicable recruitment rules in terms of law enacted under Article 309 of the Constitution of India or the Rules made in terms of proviso to Article 309 of the Constitution of India. In the absence of law and/or the rules, the executive instructions may also prescribe the eligibility conditions including the educational qualifications, experience, age limit for appointment to the post. In the present case, the respondent sought appointment as Revenue Assistant only on the basis of the fact that she possesses Diploma in Civil Engineering. The possession of Diploma in Civil Engineering is not entitlement to a public post unless such post is advertised and opportunity is given to all the eligible candidates to apply for the post in terms of applicable rules. 16. The fact remains that the Commissioner, Kuzhithurai Municipality has appointed the respondent as Revenue Assistant way back in 2006. However, the greed of the respondent for further promotion or appointment to the higher post did not end. She wanted to be appointed as Town Planning Officer again on the strength of her qualification of Diploma in Civil Engineering. As per the facts on record, the post of Town Planning Inspector is governed by the T amil Nadu Municipal Town Planning Service Rules, 1970 and that such post can be filled up either by way of promotion or by direct recruitment. The respondent is not in the feeder cadre for appointment to the post of Town Planning Inspector. In the absence of her being in feeder cadre, the High Court committed illegality in directing the consideration for appointment of the respondent to the post of Town Planning Inspector. It may be noticed that Town Planning Officer Grade II is a promotional post from amongst Town Planning Inspectors, who has worked in regular capacity for a period of ten years as per the Rules. 17. The stand of the respondent that the post of Town Planning Inspector is governed by the General Rules, is not made out as such Rules provide for promotion for the post of Revenue Assistant to the post of Revenue Inspector but not to the post of Town Planning Inspector. The Town Planning Assistant Draughtsman is the feeder cadre for promotion of Town Planning Inspector and that the Revenue Assistant is not the feeder cadre nor the respondent can claim any right to appointment only on the basis of her educational qualifications. 18. We find the manner in which the High Court has issued directions time and again shows utter disregard to the basic principles of law and then calling upon the officers to face contempt if the directions are not complied with. Such directions are wholly without any legal basis and, thus, cannot be sustained. 19. At this stage, it may be mentioned that learned counsel for the respondent referred to appointment to the post of Town Planning Inspector from the post of Revenue Assistant in the Nagercoil Municipality. We find that such appointment may be illegal and not warranted by the recruitment rules. It is well settled that there cannot be any parity in the illegality. Once the appointment to the post of Town Planning Inspector is not contemplated from amongst the Revenue Inspectors, the respondent cannot claim any parity on the basis of illegality committed by Nagercoil Municipality. Reference can be made to Chandigarh Administration & Anr. v. Jagjit Singh & Anr. (1995) 1 SCC 745 and Kulwinder Pal Singh & Anr. v. State of Punjab & Ors.(2016) 6 SCC 532 . This Court in Kulwinder Pal Singh, held as under: 16. The learned counsel for the appellants contended that when the other candidates were appointed in the post against dereserved category, the same benefit should also be extended to the appellants. Article 14 of the Constitution of India is not to perpetuate illegality and it does not envisage negative equalities. In State of U.P . v. Rajkumar Sharma [State of U.P . v. Rajkumar Sharma, (2006) 3 SCC 330 : 2006 SCC (L&S) 565] it was held as under: (SCC p. 337, para 15)?15. Even if in some cases appointments have been made by mistake or wrongly, that does not confer any right on another person. Article 14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake. (See Sneh Prabha v. State of U.P . [Sneh Prabha v. State of U.P ., (1996) 7 SCC 426 ]; Jaipur Development Authority v. Daulat Mal Jain [Jaipur Development Authority v. Daulat Mal Jain, (1997) 1 SCC 35 ] ; State of Haryana v. Ram Kumar Mann [State of Haryana v. Ram Kumar Mann, (1997) 3 SCC 321 : 1997 SCC (L&S) 801] ; Faridabad CT Scan Centre v. DG, Health Services [Faridabad CT Scan Centre v. DG, Health Services, (1997) 7 SCC 752 ] ; Jalandhar Improvement Trust v. Sampuran Singh [Jalandhar Improvement Trust v. Sampuran Singh, (1999) 3 SCC 494 ]; State of Punjab v. Rajeev Sarwal [State of Punjab v. Rajeev Sarwal, (1999) 9 SCC 240 : 1999 SCC (L&S) 1171] ; Yogesh Kumar v. Govt. (NCT of Delhi) [Yogesh Kumar v. Govt. (NCT of Delhi), (2003) 3 SCC 548 : 2003 SCC (L&S) 346] ; Union of India v. International Trading Co. [Union of India v. International Trading Co., (2003) 5 SCC 437 ] and Kastha Niwarak Grahnirman Sahakari Sanstha Maryadit v. Indore Development Authority [Kastha Niwarak Grahnirman Sahakari Sanstha Maryadit v. Indore Development Authority, (2006) 2 SCC 604 ].)? Merely because some persons have been granted benefit illegally or by mistake, it does not confer right upon the appellants to claim equality.?
### Response:
1
### Explanation:
15. We find that the orders of the High Court are patently illegal and unwarranted. The respondent was initially appointed as Road Gang Mazdoor. She came to be appointed as Revenue Assistant in pursuance of the orders passed by the Madras High Court for the reason that she is qualified for such post. The qualification for the post is not the criteria for appointment to the public post as any appointment to a public post cannot be made merely on the basis of possessing required educational qualifications. Any appointment to a public post can be made in the manner provided by the applicable recruitment rules in terms of law enacted under Article 309 of the Constitution of India or the Rules made in terms of proviso to Article 309 of the Constitution of India. In the absence of law and/or the rules, the executive instructions may also prescribe the eligibility conditions including the educational qualifications, experience, age limit for appointment to the post. In the present case, the respondent sought appointment as Revenue Assistant only on the basis of the fact that she possesses Diploma in Civil Engineering. The possession of Diploma in Civil Engineering is not entitlement to a public post unless such post is advertised and opportunity is given to all the eligible candidates to apply for the post in terms of applicable rules.The fact remains that the Commissioner, Kuzhithurai Municipality has appointed the respondent as Revenue Assistant way back in 2006. However, the greed of the respondent for further promotion or appointment to the higher post did not end. She wanted to be appointed as Town Planning Officer again on the strength of her qualification of Diploma in Civil Engineering. As per the facts on record, the post of Town Planning Inspector is governed by the T amil Nadu Municipal Town Planning Service Rules, 1970 and that such post can be filled up either by way of promotion or by direct recruitment. The respondent is not in the feeder cadre for appointment to the post of Town Planning Inspector. In the absence of her being in feeder cadre, the High Court committed illegality in directing the consideration for appointment of the respondent to the post of Town Planning Inspector. It may be noticed that Town Planning Officer Grade II is a promotional post from amongst Town Planning Inspectors, who has worked in regular capacity for a period of ten years as per the Rules.The stand of the respondent that the post of Town Planning Inspector is governed by the General Rules, is not made out as such Rules provide for promotion for the post of Revenue Assistant to the post of Revenue Inspector but not to the post of Town Planning Inspector. The Town Planning Assistant Draughtsman is the feeder cadre for promotion of Town Planning Inspector and that the Revenue Assistant is not the feeder cadre nor the respondent can claim any right to appointment only on the basis of her educational qualifications.We find the manner in which the High Court has issued directions time and again shows utter disregard to the basic principles of law and then calling upon the officers to face contempt if the directions are not complied with. Such directions are wholly without any legal basis and, thus, cannot befind that such appointment may be illegal and not warranted by the recruitment rules. It is well settled that there cannot be any parity in the illegality. Once the appointment to the post of Town Planning Inspector is not contemplated from amongst the Revenue Inspectors, the respondent cannot claim any parity on the basis of illegality committed by Nagercoil Municipality.
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State Of Andhra Pradesh Vs. M. Lakshmi Devi | for the period ending with the last crop harvested by such tenant(4) Where any land is surrendered or is deemed to have been surrendered under this Act by any person in possession by virtue of a mortgage by conditional sale or through a part performance of contract for sale or otherwise, the possession of such land shall subject to such rules as may be prescribed, revert to the owner(5) The owner to whom the possession of the land reverts under sub-section (4) shall be liable to discharge the claim enforceable against the land by person in possession : and the land surrendered shall if held as a security, continue to be the security (5-A) Where any land is surrendered or is deemed to have been surrendered under this Act by any limited owner, the possession of such land shall, subject to such rules as may be prescribed, revert to the person having a vested interest in the remainder and such person shall be liable to discharge the claim enforceable against the land by the limited owner; and the said land shall, if held as a security, continue to be the security. (Sub-section 5-A is added as per Amendment Act No. 10 of 1977)(6) Notwithstanding anything contained in this section, where any land surrendered by an usufructuary mortgagee or a tenant or a person in possession referred to in sub-section (4), is also a land surrendered by the owner, the provisions of Section 11 shall apply." Section 11 states that where any land is surrendered or is deemed to have been surrendered under the said Act by an owner, the Revenue Divisional Officer may, subject to such rules as may be prescribed, by order, take possession or authorise any officer to take possession of such land, which shall thereupon vest in the Government free from all encumbrances from the date of such order. Section 10(5) entitles a Tribunal to refuse to accept the surrender of any land in the circumstances therein stated4. It was contended by learned counsel for the appellants that the Appellate Tribunal was in error in directing the appellants to hand over to the respondents possession of the aforementioned 294 acres of land. In his submission, there had been a surrender of the said land and the appellants were under no obligation to return it to the respondents 5. Learned counsel for the respondents urged, on the other hand, that the said Act and the Rules framed thereunder obliged the appellants to hand back to the respondents the possession of the said land and it was then for the respondents to decide which particular part of their holding they should surrender as surplus, if any, under the terms of the said Act 6. For our purposes what is relevant is that the said land was surrendered as surplus by the said company, which was in possession of the same by reason of part performance of an agreement of sale with the respondents. Sub-section (4) of Section 12 states that "where any land is surrendered or is deemed to have been surrendered under this Act by any person is possession ..... through a part performance of contract for sale ..... the possession of such land shall, subject to such rules as may be prescribed, revert to the owner". The exception that is made to this requirement is set out in sub-section (6) of Section 12 which states that it is only when land which is surrendered by the person in possession through a part performance of contract for sale is also surrendered by its owner that the provisions of Section 11 shall apply, that is to say, it shall vest in the Government 7. It will be remembered that by reason of Section 3(i) the owner is obliged to declare land that he has agreed to sell as his holding, as is the person who is in possession of it through part performance of an agreement of sale. Where that land is surrendered as surplus both by the owner and the party in possession of it, the provisions of Section 11 become applicable and the land vests in the Government; but where the land is surrendered by the party in possession of it through part performance of an agreement of sale but it is not also surrendered by the owner, the provisions of sub-section (4) of Section 12 apply and the possession of the land must revert to the owner8. It will be noted that possession shall revert to the owner "subject to such rules as may be prescribed". The relevant rule in this behalf is Rule 9 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Rules, 1974. Sub-rule (1) thereof states that where any land is surrendered or is deemed to have been surrendered under the said Act by, inter alia, a person in possession through part performance of a contract for sale, the possession of such land shall, as soon as may be after a seasonal crop on the land is harvested, revert to the owner, except in a case where the owner himself surrenders such land as surplus under the provisions of the Act, whereupon it shall vest in the Government free from all encumbrances. Sub-rule (2) entitles the owner to apply to the Revenue Divisional Officer for being put in possession of the land if the party who is in possession of it, inter alia, by virtue of part performance of a contract for sale fails to deliver its possession to him. The Revenue Divisional Officer is then obliged, after giving to the party in possession an opportunity of making a representation, to authorise an officer to take possession of the land and deliver it to the owner. Having regard to the fact that sub-section (4) of Section 12 refers to such rules as may be prescribed and terms of the prescribed rule, we are left in no doubt as to the correctness of the interpretation that we have placed upon Section 12 | 0[ds]7. It will be remembered that by reason of Section 3(i) the owner is obliged to declare land that he has agreed to sell as his holding, as is the person who is in possession of it through part performance of an agreement of sale. Where that land is surrendered as surplus both by the owner and the party in possession of it, the provisions of Section 11 become applicable and the land vests in the Government; but where the land is surrendered by the party in possession of it through part performance of an agreement of sale but it is not also surrendered by the owner, the provisions of(4) of Section 12 apply and the possession of the land must revert to the owner8. It will be noted that possession shall revert to the owner "subject to such rules as may be prescribed". The relevant rule in this behalf is Rule 9 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Rules, 1974.(1) thereof states that where any land is surrendered or is deemed to have been surrendered under the said Act by, inter alia, a person in possession through part performance of a contract for sale, the possession of such land shall, as soon as may be after a seasonal crop on the land is harvested, revert to the owner, except in a case where the owner himself surrenders such land as surplus under the provisions of the Act, whereupon it shall vest in the Government free from all encumbrances.(2) entitles the owner to apply to the Revenue Divisional Officer for being put in possession of the land if the party who is in possession of it, inter alia, by virtue of part performance of a contract for sale fails to deliver its possession to him. The Revenue Divisional Officer is then obliged, after giving to the party in possession an opportunity of making a representation, to authorise an officer to take possession of the land and deliver it to the owner. Having regard to the fact that(4) of Section 12 refers to such rules as may be prescribed and terms of the prescribed rule, we are left in no doubt as to the correctness of the interpretation that we have placed upon Section 12 | 0 | 1,592 | 426 | ### Instruction:
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for the period ending with the last crop harvested by such tenant(4) Where any land is surrendered or is deemed to have been surrendered under this Act by any person in possession by virtue of a mortgage by conditional sale or through a part performance of contract for sale or otherwise, the possession of such land shall subject to such rules as may be prescribed, revert to the owner(5) The owner to whom the possession of the land reverts under sub-section (4) shall be liable to discharge the claim enforceable against the land by person in possession : and the land surrendered shall if held as a security, continue to be the security (5-A) Where any land is surrendered or is deemed to have been surrendered under this Act by any limited owner, the possession of such land shall, subject to such rules as may be prescribed, revert to the person having a vested interest in the remainder and such person shall be liable to discharge the claim enforceable against the land by the limited owner; and the said land shall, if held as a security, continue to be the security. (Sub-section 5-A is added as per Amendment Act No. 10 of 1977)(6) Notwithstanding anything contained in this section, where any land surrendered by an usufructuary mortgagee or a tenant or a person in possession referred to in sub-section (4), is also a land surrendered by the owner, the provisions of Section 11 shall apply." Section 11 states that where any land is surrendered or is deemed to have been surrendered under the said Act by an owner, the Revenue Divisional Officer may, subject to such rules as may be prescribed, by order, take possession or authorise any officer to take possession of such land, which shall thereupon vest in the Government free from all encumbrances from the date of such order. Section 10(5) entitles a Tribunal to refuse to accept the surrender of any land in the circumstances therein stated4. It was contended by learned counsel for the appellants that the Appellate Tribunal was in error in directing the appellants to hand over to the respondents possession of the aforementioned 294 acres of land. In his submission, there had been a surrender of the said land and the appellants were under no obligation to return it to the respondents 5. Learned counsel for the respondents urged, on the other hand, that the said Act and the Rules framed thereunder obliged the appellants to hand back to the respondents the possession of the said land and it was then for the respondents to decide which particular part of their holding they should surrender as surplus, if any, under the terms of the said Act 6. For our purposes what is relevant is that the said land was surrendered as surplus by the said company, which was in possession of the same by reason of part performance of an agreement of sale with the respondents. Sub-section (4) of Section 12 states that "where any land is surrendered or is deemed to have been surrendered under this Act by any person is possession ..... through a part performance of contract for sale ..... the possession of such land shall, subject to such rules as may be prescribed, revert to the owner". The exception that is made to this requirement is set out in sub-section (6) of Section 12 which states that it is only when land which is surrendered by the person in possession through a part performance of contract for sale is also surrendered by its owner that the provisions of Section 11 shall apply, that is to say, it shall vest in the Government 7. It will be remembered that by reason of Section 3(i) the owner is obliged to declare land that he has agreed to sell as his holding, as is the person who is in possession of it through part performance of an agreement of sale. Where that land is surrendered as surplus both by the owner and the party in possession of it, the provisions of Section 11 become applicable and the land vests in the Government; but where the land is surrendered by the party in possession of it through part performance of an agreement of sale but it is not also surrendered by the owner, the provisions of sub-section (4) of Section 12 apply and the possession of the land must revert to the owner8. It will be noted that possession shall revert to the owner "subject to such rules as may be prescribed". The relevant rule in this behalf is Rule 9 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Rules, 1974. Sub-rule (1) thereof states that where any land is surrendered or is deemed to have been surrendered under the said Act by, inter alia, a person in possession through part performance of a contract for sale, the possession of such land shall, as soon as may be after a seasonal crop on the land is harvested, revert to the owner, except in a case where the owner himself surrenders such land as surplus under the provisions of the Act, whereupon it shall vest in the Government free from all encumbrances. Sub-rule (2) entitles the owner to apply to the Revenue Divisional Officer for being put in possession of the land if the party who is in possession of it, inter alia, by virtue of part performance of a contract for sale fails to deliver its possession to him. The Revenue Divisional Officer is then obliged, after giving to the party in possession an opportunity of making a representation, to authorise an officer to take possession of the land and deliver it to the owner. Having regard to the fact that sub-section (4) of Section 12 refers to such rules as may be prescribed and terms of the prescribed rule, we are left in no doubt as to the correctness of the interpretation that we have placed upon Section 12
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7. It will be remembered that by reason of Section 3(i) the owner is obliged to declare land that he has agreed to sell as his holding, as is the person who is in possession of it through part performance of an agreement of sale. Where that land is surrendered as surplus both by the owner and the party in possession of it, the provisions of Section 11 become applicable and the land vests in the Government; but where the land is surrendered by the party in possession of it through part performance of an agreement of sale but it is not also surrendered by the owner, the provisions of(4) of Section 12 apply and the possession of the land must revert to the owner8. It will be noted that possession shall revert to the owner "subject to such rules as may be prescribed". The relevant rule in this behalf is Rule 9 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Rules, 1974.(1) thereof states that where any land is surrendered or is deemed to have been surrendered under the said Act by, inter alia, a person in possession through part performance of a contract for sale, the possession of such land shall, as soon as may be after a seasonal crop on the land is harvested, revert to the owner, except in a case where the owner himself surrenders such land as surplus under the provisions of the Act, whereupon it shall vest in the Government free from all encumbrances.(2) entitles the owner to apply to the Revenue Divisional Officer for being put in possession of the land if the party who is in possession of it, inter alia, by virtue of part performance of a contract for sale fails to deliver its possession to him. The Revenue Divisional Officer is then obliged, after giving to the party in possession an opportunity of making a representation, to authorise an officer to take possession of the land and deliver it to the owner. Having regard to the fact that(4) of Section 12 refers to such rules as may be prescribed and terms of the prescribed rule, we are left in no doubt as to the correctness of the interpretation that we have placed upon Section 12
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Oriental Metal Pressing Works (Private) Limited & Others Vs. Bhaskar Kashinath Thakoor & Another | delegated power. The present argument must therefore fail. 20. For all these reasons, the conclusion seems to me inescapable that the expression assignment of his office cannot be read in the narrow restricted sense in which we have been asked to read it on behalf of the appellants and sec. 312 must be read as applicable to a director including a managing director and in the comprehensive sense in which it would include appointment by any testamentary disposition or direction. In my judgment the learned Judge was right in the conclusion reached by him. 21. I now turn to examine another contention urged before us by Mr. Manekshaw. It has been argued that in any event the plaintiff ceased to be a director of the company because he failed to attend certain meetings of the directors and became disqualified from acting as a director by operation of Art. 85(f) and sec. 283(g). A few dates and facts are necessary to dispose of this contention. There was a meeting of the Board of Directors soon after the death of Dadoba which was in the nature of a condolence meeting and it was attended by the plaintiff. That was on 13-2-1957. On 14-2-1957 the second defendant sent out a notice calling a meeting of the Board of Directors of the company for 14-2-1957. He sent that notice as Chairman of the company. The next notice sent out by the second defendant was signed by him as a director and was on 19-3-1957. By his letter dated 23-3-1957 the plaintiff protested against the notice of 19-3-1957 which had been sent out by the second defendant. A notice dated 27-3-1957 convening a meeting of the Board of Directors was sent by the second defendant as a managing director of the company. A notice dated 4-5-1957 was also sent by the second defendant describing himself as a managing director. A notice dated 21-5-1957 was also sent by the second defendant as a managing director of the company. So also a notice dated 23-5-1957 was sent by the second defendant as the Managing Director of the company. It will be seen that all but one of the notices relating to the convening of the meeting of Board of Directors were sent by the second defendant as Chairman or managing director and at all relevant period the plaintiff protested against the right of the second defendant to convene any meeting in his capacity as Managing Director or Chairman of the Board of Directors of the company. Since I have taken the view that the appointment of the second defendant as the Managing Director was invalid and bad in law, it must follow as a necessary corollary to that conclusion that the second defendant had in law no power to convene any meeting as a managing director of the company and if he did so, those meetings were not duly and legally convened meetings and if they were not duly and legally convened meetings, it cannot be said that the plaintiff absented himself from any properly convened meeting of the Board of Directors of the company. I must point out that it was also argued by Mr. Manekshaw that in any event the second defendant had continued all along to be a director of the company and even if it be held by the Court that he had no right to convene the meetings as a managing director of the company, he had the right to convene those meetings as a director and on that ground the plaintiff should be disqualified because he had failed to attend the meetings as required by the Articles of Association and by the provisions of law. I do not think this argument is tenable. In express terms, the meetings were called by the second defendant in his alleged capacity as a managing director and there is nothing on the record to show that he called those meetings simply as a director of the company. It is not, therefore, necessary to examine this argument at any length. The meetings being called by him in the exercise of a capacity which he did not have, were bad and it is not open to him now to fall back on his position as a director of the company. I may also refer to Article 94 of the Articles of Association of the company which deals with the question as to when a director may summon a meeting. That article lays down that the managing director may at any time and shall upon request of any Director convene a meeting of the directors. The power to call a meeting of the directors is primarily with the managing director and the second defendant in terms called those meetings as managing director. Mr, Manekshaw has also drawn out attention to Form No. 184 from Palmers Company Precedents and relied on the following observation : In the absence of any article otherwise providing or a contrary practice established by the directors it would seem that any director may summon a meeting. There is nothing before us to show that any contrary practice has been established and Art. 94 is the relevant article which must be taken into consideration in this matter. There is no other article in the Articles of Association of the company which can be said to deal with the matter. The present contention fails and must be negatived. 22. There remains to consider one more contention urged before us by Mr. Manekshaw. It is said that the appointment of the third defendant has been erroneously declared by the trial court to be bad in law. It is not necessary to refer to what I have already said in my judgment about the appointment of the second defendant as a managing director being invalid and bad in law. If his appointment was invalid and bad in law, he had no power to appoint the third defendant as a director by co-option.. That contention also must be rejected. | 0[ds]4. At first blush the argument, under the latter head, that a person cannot transfer what he has not got may perhaps seem somewhat attractive from a sheer legal point of view, however repugnant it may be to the object of the Legislature in laying down the absolute bar against the transfer of an office of a Director. But on closer examination I think it defective even from the legal standpoint in paying too little attention to a number of relevant and material considerations, which, in my judgment, must weigh with the Court on this question of interpretation of the rule which aims to prevent use and abuse of a powerNow, what Mr. Manekshaw contends for is the same principle but the contention assumes as a major premise an equivalent between the nature of a right or interest in properly and the office of a Director which by no stretch of argument can be termed as property or any interest or right inSuch an equation, to my mind, is impermissible. We have nothing to do with any right or interest in property nor are we concerned with any question of title or transmission of a title which could or could not vest in DadobaIt has not been possible for Mr. Manekshaw to dispute that if this was done during theDirector by an act inter vivos it would be an assignment and hit by S. 312, though at one stage of the argument that position was not accepted. But that line had to be abandoned in view of the language of certain sections in the Act and particularly S. 86B of the repealed Act of 1913 and the proviso to the same to which I shall refer a little laterTo my mind, there is here no justification for anyd distinction between appointment and assignment. In the first place, we are not dealing with property. We are dealing with an office which can only be the subject matter of an appointment. Whether you call it an assignment or transfer or alienation or appointment, it has the same meaning and the effect is the same. I fail to see how in such a case it can be said that what is done is not a transfer because the right to transfer was not there. Of course it was not there at the inception but it was there when the power to transfer the right was conferred. This, to my mind, is the weakness underlying the argument of learned counsel so strongly pressed for our acceptance9. To turn to the former head of the argument of Mr. Manekshaw relating to the connotation of assignment of an office within the meaning of that expression as used in S. 312. Now, it is well understood that the expressions assign and transfer are often used in our statutes to convey the same meaning and the same sense and that the primary meaning of the word assign is to legally transfer or to legally make over any property or any right. It is equally well understood that the expression transfer is one of wide import and embraces both a transfer by an act inter vivos as well as a transfer by operation of law, that is by sale in execution, forfeiture, insolvency, intestate succession or testamentary disposition. In view of this connotation of the word transfer the argument on behalf of the appellants was that a distinction must be drawn between an assignment of the office of a Director and appointment of another person as a Director by a person holding the office of Director. Learned counsel, however, had to agree that if a Director in a private company appointed for life and clothed with the power to appoint any other person in his place and stead were to exercise that power by an act inter vivos that would be an assignment of an office and hit by S. 312 even though it might be called an appointment. But it was said that appointment by a will in such a case would be wholly a different matter. It would not be within the ambit of the section because that would not be an assignment. The argument of necessity had to rest on the principle one cannot give what one has not got. 1 have already examined that argumentHere, what was being done, though called an assignment, was really an appointment to the post of the office of a Director and which had the effect of imposing the will of one person on a third party and the third party was affected. This aspect of the matter, to my mind, cannot be ignored. It is not a bilateral act pure and simple with which we are concerned in this case. We are concerned with the office of a Director in a company and one person is clothed with the power to appoint another person and the appointee is the third party. Therefore, the ordinary sense in which the expression assignment may be used in the context of transfer of property by an act inter vivos is a concept which need not be introduced in reading the expression assignment in S. 31211. In my opinion, Mr. Khambatta is right when he says that an inconsistent and incongruous position must arise if the argument urged on behalf of the appellants is to be accepted by us. Of course the Court will not attach any undue importance to this consideration but any inconsistent or incongruous position that might arise has to be borne in mind even in interpreting a statute the language of which is plain and unambiguous. Moreover it is not possible to say that the expression assignment is capable of only one meaning and one meaning alone nor has any such attempt been seriously made before to suggest that the word assignment is capable of only one meaning. The inconsistent and incongruous position that can arise if the argument for the appellants is accepted is that while a Director cannot during his life time appoint another person as a Director in his place and stead, though authorised by an agreement between him and the company and the Articles of Association to do so, he can do so by an appointment which is to be effective immediately on his demiseIt is not necessary for me however, to examine in any detail what would happen in case of a Managing Director clothed with any power as in the illustration suggested by learned counsel. But it does seem that such a strange and impermissible situation can arise and it does seem that the present argument lends support to the contention pressed on behalf of the respondentsNow, this argument can have force only in case of matters which are not severable. I do not think that an appointment by a Deed inter vivos and an appointment by a Will or Codicil are matters which are not severable. Therefore, there is little scope for the present argument urged before us by Mr. Khambatta. There is, however, considerable force in the argument of learned counsel that a restricted meaning should not be given to the expression assignment in the context of the personal office of a Director of Company under our Company law. Evidently, the construction pressed for our acceptance by learned counsel for the appellants reliesto put it in his own words on the rule of literal constructionNow, Form 255 is in respect of a peculiar type of Managing Directorship and the person who holds that directorship is referred to in England as a Governing Director. It is not necessary for me to examine the Form 255 which is given in Palmers Company Precedents. No clear opinion seems to have been expressed by the editors but they say that it is not thought that sec. 204 would refer to a provision for the appointment of a successor by a governing director. They also say that the precise connotation of a power to assign office is not clear. Therefore, one thing is certain that the Editors of that Book were not inclined to state any definite opinion about the meaning of the expression to assign office in sec. 204 and left the matter as one in dubioThe, argument on behalf of the appellants leans heavily on the very insecure foundation of these observations of the learned editors made in the context of a section (204) which does not contain any proviso similar to that under the repealed sec. 86B of our Act ofWhat is more important is that sec. 204 is not in pari materia with sec. 312 with which we are really concerned and which lays down a stricter prohibition on the powers of a director. It is also noticeable that in England this point is not one of particular importance because there is no provision in the English Act similar to our sec. 312 which imposes an absolute prohibition on the assignment of the office of a director. All that is required there is a special resolution of the company. None of the two statements of the learned editors of Palmers Company Precedents ors work claim the high authority of the illustrious authors of the works and the editors also have left the matter in doubtMr. Manekshaw says that the expression quere only means that a question is put by the. To my mind, it is more than that. It is a question of the nature of objection. It is used at times to question accuracy of what has been said or written by another. In any case one thing is plain that the opinions of these editors expressed in the context of a rule which is different from the rule laid down in sec. 312 would be slender support for the construction urged on behalf of the appellantsIn the course of the arguments I put it to learned counsel for the appellants if he could suggest any reason why the Legislature should deem it necessary to prohibit a director of a company from appointing another person as a director in his place and stead by an act inter vivos, that is, during his lifetime and should not deem it necessary to prevent him from doing so by a will. No answer was given save that it would be entering the region of speculation. It would be strange indeed to attribute to the Legislature the intention to create the anomalous position that must arise if it were to be accepted that sec. 312 prohibits appointment by a director to his office of another person in his place and stead by an act inter vivos and yet permits such appointment to be made by him by his will. Moreover this incongruous position can arise not only in case of a director in a private company but also in case of a director in a public company if the construction urged on behalf of the appellants is to be accepted. It seems indubitable to me that any such appointment of a director in a public company by will is within the prohibition imposed by the section. Cadit question it is within the ambit of the prohibition in case of appointment of a director in a private company. The only answer to this suggested by learned Counsel for the appellants was that section 317 prevents appointment of a managing director of a public company for a term exceeding five years at a time. But that section has no bearing whatever on the present discussion about assignment of his office by a director. It is extremely difficult for me to see why an intention should be attributed to ther of laying down a rule the effect of which would be to rule that a director in a public or private company, authorised by the Articles of the Company, cannot make any such appointment five minutes before his deaththat would be by an act inter vivosand yet he can do it by inserting a clause to that effect in his will.It was, however, said that sec. 255(2) has the effect of permitting appointment of a director in a public or private company A. I. R. being made by a third person who may be a total outsider and not a director of the company and the argument was that an appointment made by such third person cannot be called an assignment of the office of director. The argument ran that there was no difference between any such appointment made by a third party and an appointment made by a person who happens to be ato my mind is not sound. The section speaks of assignment of his office by a director and the prohibition is evidently imposed on a person who is a director. It is the office held by a person as a director that is not permitted to be assigned by any act on his part. Therefore, there is a difference between an appointment made by a third party and one made by a director. In the former case it cannot be said that there is an assignment of his office by the person exercising the power. On a consideration of the whole matter it seems to me that having regard to the nature of the office of a director it cannot make any difference whether the act is called an assignment of his office by a director or transfer of his office by a director or appointment by such director of another person to that office in his place and stead either by a deed or will. I fail to see any reason why we should recognise thed distinction sought to be made in case of an appointment by will by attributing any restricted and technical conveyancing meaning to the expression assignment of the nature suggested on behalf of the appellants. This is not a matter of doctrinaire technicalities but a matter to be considered on broad principles and rules of interpretationI do not think that advances the contention urged on behalf of the appellants. I need not pursue the examination, of some other sections which, to my mind, support the view that the expression director when used without any qualifying words is to be read in a comprehensive sense as inclusive of a managing director and not in the exclusive sense in which we are asked to read it. These considerations, in my judgment, lead to the result that the expression director in sec. 312 includes a managing director of a public or a private companyI have read the relevant Articles 105 to 109 of the Articles of Association of the company more than once and I see no support whatever in them for the present argument. There is nothing in those articles which even faintly suggests anything like delegation nor any exercise by Dadoba of any delegated power. The present argument must therefore fail20. For all these reasons, the conclusion seems to me inescapable that the expression assignment of his office cannot be read in the narrow restricted sense in which we have been asked to read it on behalf of the appellants and sec. 312 must be read as applicable to a director including a managing director and in the comprehensive sense in which it would include appointment by any testamentary disposition or direction. In my judgment the learned Judge was right in the conclusion reached by himA few dates and facts are necessary to dispose of this contention. There was a meeting of the Board of Directors soon after the death of Dadoba which was in the nature of a condolence meeting and it was attended by the plaintiff. That was on7 the second defendant sent out a notice calling a meeting of the Board of Directors of the company for. He sent that notice as Chairman of the company. The next notice sent out by the second defendant was signed by him as a director and was on. By his letter dated7 the plaintiff protested against the notice of7 which had been sent out by the second defendant. A notice dated7 convening a meeting of the Board of Directors was sent by the second defendant as a managing director of the company. A notice dated7 was also sent by the second defendant describing himself as a managing director. A notice dated7 was also sent by the second defendant as a managing director of the company. So also a notice dated7 was sent by the second defendant as the Managing Director of the company. It will be seen that all but one of the notices relating to the convening of the meeting of Board of Directors were sent by the second defendant as Chairman or managing director and at all relevant period the plaintiff protested against the right of the second defendant to convene any meeting in his capacity as Managing Director or Chairman of the Board of Directors of the company. Since I have taken the view that the appointment of the second defendant as the Managing Director was invalid and bad in law, it must follow as a necessary corollary to that conclusion that the second defendant had in law no power to convene any meeting as a managing director of the company and if he did so, those meetings were not duly and legally convened meetings and if they were not duly and legally convened meetings, it cannot be said that the plaintiff absented himself from any properly convened meeting of the Board of Directors of the companyI do not think this argument is tenable. In express terms, the meetings were called by the second defendant in his alleged capacity as a managing director and there is nothing on the record to show that he called those meetings simply as a director of the company. It is not, therefore, necessary to examine this argument at any length. The meetings being called by him in the exercise of a capacity which he did not have, were bad and it is not open to him now to fall back on his position as a director of the company. I may also refer to Article 94 of the Articles of Association of the company which deals with the question as to when a director may summon a meeting. That article lays down that the managing director may at any time and shall upon request of any Director convene a meeting of the directors. The power to call a meeting of the directors is primarily with the managing director and the second defendant in terms called those meetings as managing directorThere is nothing before us to show that any contrary practice has been established and Art. 94 is the relevant article which must be taken into consideration in this matter. There is no other article in the Articles of Association of the company which can be said to deal with the matter. The present contention fails and must be negatived22. There remains to consider one more contention urged before us by Mr. Manekshaw. It is said that the appointment of the third defendant has been erroneously declared by the trial court to be bad in law. It is not necessary to refer to what I have already said in my judgment about the appointment of the second defendant as a managing director being invalid and bad in law. If his appointment was invalid and bad in law, he had no power to appoint the third defendant as a director by | 0 | 13,687 | 3,429 | ### Instruction:
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delegated power. The present argument must therefore fail. 20. For all these reasons, the conclusion seems to me inescapable that the expression assignment of his office cannot be read in the narrow restricted sense in which we have been asked to read it on behalf of the appellants and sec. 312 must be read as applicable to a director including a managing director and in the comprehensive sense in which it would include appointment by any testamentary disposition or direction. In my judgment the learned Judge was right in the conclusion reached by him. 21. I now turn to examine another contention urged before us by Mr. Manekshaw. It has been argued that in any event the plaintiff ceased to be a director of the company because he failed to attend certain meetings of the directors and became disqualified from acting as a director by operation of Art. 85(f) and sec. 283(g). A few dates and facts are necessary to dispose of this contention. There was a meeting of the Board of Directors soon after the death of Dadoba which was in the nature of a condolence meeting and it was attended by the plaintiff. That was on 13-2-1957. On 14-2-1957 the second defendant sent out a notice calling a meeting of the Board of Directors of the company for 14-2-1957. He sent that notice as Chairman of the company. The next notice sent out by the second defendant was signed by him as a director and was on 19-3-1957. By his letter dated 23-3-1957 the plaintiff protested against the notice of 19-3-1957 which had been sent out by the second defendant. A notice dated 27-3-1957 convening a meeting of the Board of Directors was sent by the second defendant as a managing director of the company. A notice dated 4-5-1957 was also sent by the second defendant describing himself as a managing director. A notice dated 21-5-1957 was also sent by the second defendant as a managing director of the company. So also a notice dated 23-5-1957 was sent by the second defendant as the Managing Director of the company. It will be seen that all but one of the notices relating to the convening of the meeting of Board of Directors were sent by the second defendant as Chairman or managing director and at all relevant period the plaintiff protested against the right of the second defendant to convene any meeting in his capacity as Managing Director or Chairman of the Board of Directors of the company. Since I have taken the view that the appointment of the second defendant as the Managing Director was invalid and bad in law, it must follow as a necessary corollary to that conclusion that the second defendant had in law no power to convene any meeting as a managing director of the company and if he did so, those meetings were not duly and legally convened meetings and if they were not duly and legally convened meetings, it cannot be said that the plaintiff absented himself from any properly convened meeting of the Board of Directors of the company. I must point out that it was also argued by Mr. Manekshaw that in any event the second defendant had continued all along to be a director of the company and even if it be held by the Court that he had no right to convene the meetings as a managing director of the company, he had the right to convene those meetings as a director and on that ground the plaintiff should be disqualified because he had failed to attend the meetings as required by the Articles of Association and by the provisions of law. I do not think this argument is tenable. In express terms, the meetings were called by the second defendant in his alleged capacity as a managing director and there is nothing on the record to show that he called those meetings simply as a director of the company. It is not, therefore, necessary to examine this argument at any length. The meetings being called by him in the exercise of a capacity which he did not have, were bad and it is not open to him now to fall back on his position as a director of the company. I may also refer to Article 94 of the Articles of Association of the company which deals with the question as to when a director may summon a meeting. That article lays down that the managing director may at any time and shall upon request of any Director convene a meeting of the directors. The power to call a meeting of the directors is primarily with the managing director and the second defendant in terms called those meetings as managing director. Mr, Manekshaw has also drawn out attention to Form No. 184 from Palmers Company Precedents and relied on the following observation : In the absence of any article otherwise providing or a contrary practice established by the directors it would seem that any director may summon a meeting. There is nothing before us to show that any contrary practice has been established and Art. 94 is the relevant article which must be taken into consideration in this matter. There is no other article in the Articles of Association of the company which can be said to deal with the matter. The present contention fails and must be negatived. 22. There remains to consider one more contention urged before us by Mr. Manekshaw. It is said that the appointment of the third defendant has been erroneously declared by the trial court to be bad in law. It is not necessary to refer to what I have already said in my judgment about the appointment of the second defendant as a managing director being invalid and bad in law. If his appointment was invalid and bad in law, he had no power to appoint the third defendant as a director by co-option.. That contention also must be rejected.
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to that office in his place and stead either by a deed or will. I fail to see any reason why we should recognise thed distinction sought to be made in case of an appointment by will by attributing any restricted and technical conveyancing meaning to the expression assignment of the nature suggested on behalf of the appellants. This is not a matter of doctrinaire technicalities but a matter to be considered on broad principles and rules of interpretationI do not think that advances the contention urged on behalf of the appellants. I need not pursue the examination, of some other sections which, to my mind, support the view that the expression director when used without any qualifying words is to be read in a comprehensive sense as inclusive of a managing director and not in the exclusive sense in which we are asked to read it. These considerations, in my judgment, lead to the result that the expression director in sec. 312 includes a managing director of a public or a private companyI have read the relevant Articles 105 to 109 of the Articles of Association of the company more than once and I see no support whatever in them for the present argument. There is nothing in those articles which even faintly suggests anything like delegation nor any exercise by Dadoba of any delegated power. The present argument must therefore fail20. For all these reasons, the conclusion seems to me inescapable that the expression assignment of his office cannot be read in the narrow restricted sense in which we have been asked to read it on behalf of the appellants and sec. 312 must be read as applicable to a director including a managing director and in the comprehensive sense in which it would include appointment by any testamentary disposition or direction. In my judgment the learned Judge was right in the conclusion reached by himA few dates and facts are necessary to dispose of this contention. There was a meeting of the Board of Directors soon after the death of Dadoba which was in the nature of a condolence meeting and it was attended by the plaintiff. That was on7 the second defendant sent out a notice calling a meeting of the Board of Directors of the company for. He sent that notice as Chairman of the company. The next notice sent out by the second defendant was signed by him as a director and was on. By his letter dated7 the plaintiff protested against the notice of7 which had been sent out by the second defendant. A notice dated7 convening a meeting of the Board of Directors was sent by the second defendant as a managing director of the company. A notice dated7 was also sent by the second defendant describing himself as a managing director. A notice dated7 was also sent by the second defendant as a managing director of the company. So also a notice dated7 was sent by the second defendant as the Managing Director of the company. It will be seen that all but one of the notices relating to the convening of the meeting of Board of Directors were sent by the second defendant as Chairman or managing director and at all relevant period the plaintiff protested against the right of the second defendant to convene any meeting in his capacity as Managing Director or Chairman of the Board of Directors of the company. Since I have taken the view that the appointment of the second defendant as the Managing Director was invalid and bad in law, it must follow as a necessary corollary to that conclusion that the second defendant had in law no power to convene any meeting as a managing director of the company and if he did so, those meetings were not duly and legally convened meetings and if they were not duly and legally convened meetings, it cannot be said that the plaintiff absented himself from any properly convened meeting of the Board of Directors of the companyI do not think this argument is tenable. In express terms, the meetings were called by the second defendant in his alleged capacity as a managing director and there is nothing on the record to show that he called those meetings simply as a director of the company. It is not, therefore, necessary to examine this argument at any length. The meetings being called by him in the exercise of a capacity which he did not have, were bad and it is not open to him now to fall back on his position as a director of the company. I may also refer to Article 94 of the Articles of Association of the company which deals with the question as to when a director may summon a meeting. That article lays down that the managing director may at any time and shall upon request of any Director convene a meeting of the directors. The power to call a meeting of the directors is primarily with the managing director and the second defendant in terms called those meetings as managing directorThere is nothing before us to show that any contrary practice has been established and Art. 94 is the relevant article which must be taken into consideration in this matter. There is no other article in the Articles of Association of the company which can be said to deal with the matter. The present contention fails and must be negatived22. There remains to consider one more contention urged before us by Mr. Manekshaw. It is said that the appointment of the third defendant has been erroneously declared by the trial court to be bad in law. It is not necessary to refer to what I have already said in my judgment about the appointment of the second defendant as a managing director being invalid and bad in law. If his appointment was invalid and bad in law, he had no power to appoint the third defendant as a director by
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Punjab Wakf Board, Ambala Cantt Vs. Capt. Mehar Singh and Others | RAY, C.J.1. This appeal is by special leave from the judgment dated March 29, 1968 of the Punjab and Haryana High Court.2. The appellant brought this suit against the respondents for possession of a plot of open land. The land bears plot No. 32. The appellant alleged that plot No. 32 formed part of plot No. 116 and the land was Idgah. Idgah means a place of public worship. The appellants case was that the land was wakf property and was transferred to the appellant by the Custodian of Jullundur. The respondents were alleged by the appellant to be in unlawful occupation of the plot of land after the partition of India.3. The trial Court held that the land in dispute was not Idgah and there was no wakf. The suit was dismissed.4. The Additional District Judge affirmed the decision of the trial Court.5. The High Court did not admit the appeal.6. The appellant raised two contentions. First, the Custodian of Punjab (Jullundur) declared the property forming the subject-matter of the suit to be evacuee property under the Administration of Evacuee Property Act, 1950 (hereinafter called the Act). The Custodian transferred the property to the appellant. The property was originally held on trust. When the property was declared to be evacuee property, it retained its characteristics of trust. The declaration by the Custodian amounted to a finding that the property is trust property. Under Section 46 of the Act, the jurisdiction of civil courts is barred to go into the title of the property. Second, on the evidence in the suit, the only conclusion is that the property is wakf.7. The first contention of the appellant is not supported by pleadings and proof at the trial. The appellant did not plead that there was any anterior wakf of the property prior to declaration of the same by the Custodian to be evacuee property. There is no evidence that the Custodian decided that the property was wakf property. Section 46 of the Act is not attracted.8. The appellant relied on three documents marked Exhibits P-1, P-2 and P-3 in support of the contention that the property was wakf and the same property was transferred by the Custodian.9. Exhibit P-1 is a memorandum written by the Assistant Custodian to the Chairman of the appellant Board that the demand and collection registers of Ambala and Patiala districts and one survey register of Patiala district have been sent. There is no reference in Exhibit P-1 that the property in suit is wakf property.10. Exhibit P-2 is a notification dated February 27, 1961 issued by the Home Secretary. The notification states that in exercise of the powers conferred by Section 55(2) of the Act, the Governor of Punjab is pleased to direct that the powers under Section 11(1) in respect of Muslim evacuee properties in trust for public of a religious or charitable nature in the Punjab State, exercisable by the Government of Punjab shall be exercisable by the Board of Wakfs established under Section 9 of the Muslim Wakfs Act, 1954. There is no intrinsic evidence in Exhibit P-2 to indicate the property in suit is wakf property. The exercise of powers by the Board under the Muslim Wakfs Act in respect of Muslim evacuee properties in trust does not establish and identify the property in suit to be wakf property.11. Exhibit P-3 is relied upon by the appellant to show that the property is wakf. The word "Idgah" appears in Exhibit P-3. The appellant contends that the property is, therefore, proved to be "Idgah". Exhibit P-3 is described as "Rent Demand and Collection Register". Rule 33 of the Administration of Evacuee Property (Central) Rules, 1950 speaks of record of property to be maintained in form No. 10. Exhibit P-3 is neither in form No. 10 nor is it under Rule 33. Form No. 10 has a specific column No. 5 which speaks of designation of property by name, if any, and type of building for instance residential bungalow, shop, cinema, theatre, mosque, factory, etc. Exhibit P-3 is not of the type contemplated by Rule 33. The suit property cannot become wakf property by the mere use of the word "Idgah" in Exhibit P-3.12. The appellant relied on the decision in Mazhar Husain v. Rao Bahadur Adiya (AIR 1948 PC 42 : (1948) 1 MLJ 259 ) in support of the proposition that where there is no evidence that a person ever executed a wakfnama and no direct evidence of any oral dedication by him is available the proper inference from the history of the matter, the dealings with the parties in dispute, the litigation that has affected it and the admissions and assertions made by the predecessors in title of the persons who dispute the wakf can be made about the valid creation of a wakf attaching to the properties.13. The concurrent findings in the present case are these. There is no evidence that the property in question was used as wakf property. There is no dedication of the property to be wakf property. There is no evidence that the property was determined to be wakf property by the Custodian. | 0[ds]7. The first contention of the appellant is not supported by pleadings and proof at the trial. The appellant did not plead that there was any anterior wakf of the property prior to declaration of the same by the Custodian to be evacuee property. There is no evidence that the Custodian decided that the property was wakf property. Section 46 of the Act is not attracted.The concurrent findings in the present case are these. There is no evidence that the property in question was used as wakf property. There is no dedication of the property to be wakf property. There is no evidence that the property was determined to be wakf property by the Custodian.The appellant relied on the decision in Mazhar Husain v. Rao Bahadur Adiya (AIR 1948 PC 42 : (1948) 1 MLJ 259 ) in support of the proposition that where there is no evidence that a person ever executed a wakfnama and no direct evidence of any oral dedication by him is available the proper inference from the history of the matter, the dealings with the parties in dispute, the litigation that has affected it and the admissions and assertions made by the predecessors in title of the persons who dispute the wakf can be made about the valid creation of a wakf attaching to the properties. | 0 | 959 | 238 | ### 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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RAY, C.J.1. This appeal is by special leave from the judgment dated March 29, 1968 of the Punjab and Haryana High Court.2. The appellant brought this suit against the respondents for possession of a plot of open land. The land bears plot No. 32. The appellant alleged that plot No. 32 formed part of plot No. 116 and the land was Idgah. Idgah means a place of public worship. The appellants case was that the land was wakf property and was transferred to the appellant by the Custodian of Jullundur. The respondents were alleged by the appellant to be in unlawful occupation of the plot of land after the partition of India.3. The trial Court held that the land in dispute was not Idgah and there was no wakf. The suit was dismissed.4. The Additional District Judge affirmed the decision of the trial Court.5. The High Court did not admit the appeal.6. The appellant raised two contentions. First, the Custodian of Punjab (Jullundur) declared the property forming the subject-matter of the suit to be evacuee property under the Administration of Evacuee Property Act, 1950 (hereinafter called the Act). The Custodian transferred the property to the appellant. The property was originally held on trust. When the property was declared to be evacuee property, it retained its characteristics of trust. The declaration by the Custodian amounted to a finding that the property is trust property. Under Section 46 of the Act, the jurisdiction of civil courts is barred to go into the title of the property. Second, on the evidence in the suit, the only conclusion is that the property is wakf.7. The first contention of the appellant is not supported by pleadings and proof at the trial. The appellant did not plead that there was any anterior wakf of the property prior to declaration of the same by the Custodian to be evacuee property. There is no evidence that the Custodian decided that the property was wakf property. Section 46 of the Act is not attracted.8. The appellant relied on three documents marked Exhibits P-1, P-2 and P-3 in support of the contention that the property was wakf and the same property was transferred by the Custodian.9. Exhibit P-1 is a memorandum written by the Assistant Custodian to the Chairman of the appellant Board that the demand and collection registers of Ambala and Patiala districts and one survey register of Patiala district have been sent. There is no reference in Exhibit P-1 that the property in suit is wakf property.10. Exhibit P-2 is a notification dated February 27, 1961 issued by the Home Secretary. The notification states that in exercise of the powers conferred by Section 55(2) of the Act, the Governor of Punjab is pleased to direct that the powers under Section 11(1) in respect of Muslim evacuee properties in trust for public of a religious or charitable nature in the Punjab State, exercisable by the Government of Punjab shall be exercisable by the Board of Wakfs established under Section 9 of the Muslim Wakfs Act, 1954. There is no intrinsic evidence in Exhibit P-2 to indicate the property in suit is wakf property. The exercise of powers by the Board under the Muslim Wakfs Act in respect of Muslim evacuee properties in trust does not establish and identify the property in suit to be wakf property.11. Exhibit P-3 is relied upon by the appellant to show that the property is wakf. The word "Idgah" appears in Exhibit P-3. The appellant contends that the property is, therefore, proved to be "Idgah". Exhibit P-3 is described as "Rent Demand and Collection Register". Rule 33 of the Administration of Evacuee Property (Central) Rules, 1950 speaks of record of property to be maintained in form No. 10. Exhibit P-3 is neither in form No. 10 nor is it under Rule 33. Form No. 10 has a specific column No. 5 which speaks of designation of property by name, if any, and type of building for instance residential bungalow, shop, cinema, theatre, mosque, factory, etc. Exhibit P-3 is not of the type contemplated by Rule 33. The suit property cannot become wakf property by the mere use of the word "Idgah" in Exhibit P-3.12. The appellant relied on the decision in Mazhar Husain v. Rao Bahadur Adiya (AIR 1948 PC 42 : (1948) 1 MLJ 259 ) in support of the proposition that where there is no evidence that a person ever executed a wakfnama and no direct evidence of any oral dedication by him is available the proper inference from the history of the matter, the dealings with the parties in dispute, the litigation that has affected it and the admissions and assertions made by the predecessors in title of the persons who dispute the wakf can be made about the valid creation of a wakf attaching to the properties.13. The concurrent findings in the present case are these. There is no evidence that the property in question was used as wakf property. There is no dedication of the property to be wakf property. There is no evidence that the property was determined to be wakf property by the Custodian.
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7. The first contention of the appellant is not supported by pleadings and proof at the trial. The appellant did not plead that there was any anterior wakf of the property prior to declaration of the same by the Custodian to be evacuee property. There is no evidence that the Custodian decided that the property was wakf property. Section 46 of the Act is not attracted.The concurrent findings in the present case are these. There is no evidence that the property in question was used as wakf property. There is no dedication of the property to be wakf property. There is no evidence that the property was determined to be wakf property by the Custodian.The appellant relied on the decision in Mazhar Husain v. Rao Bahadur Adiya (AIR 1948 PC 42 : (1948) 1 MLJ 259 ) in support of the proposition that where there is no evidence that a person ever executed a wakfnama and no direct evidence of any oral dedication by him is available the proper inference from the history of the matter, the dealings with the parties in dispute, the litigation that has affected it and the admissions and assertions made by the predecessors in title of the persons who dispute the wakf can be made about the valid creation of a wakf attaching to the properties.
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M/S Madras Industrial Investmentcorporation Ltd Vs. The Commissioner Of Income Tax,Tamil Nadu I, Madras | used by the company for the purposes of its business. This would, therefore, be expenditureSection 37(1) further requires that the expenditure should not be of a capital nature. In the case of India Cements Ltd. v. CIT (SC) the appellant-company had obtained a loan of Rs. 40 lakhs from the Industrial Finance Corporation secured by a charge on its fixed assets. In connection with this loan it spent a sum of Rs. 84, 633 towards stamp duty, registration fees, lawyers fees, etc., and claimed this amount as business expenditure. This court considered whether the expenditure so incurred was business expenditure or whether it was capital expenditure. This court quoted with approval the observations of Shah J. in Bombay Steam Navigation Co. (1953) P. Ltd. v. CIT that whether a particular expenditure is revenue expenditure incurred for the purpose of business must be determined on a consideration of all the facts and circumstances, and by the application of principles of commercial trading. The question must be viewed in the larger context of business necessity or expediency. If the outgoing or expenditure is so related to the carrying on or conduct of the business, that it may be regarded as an integral part of the profit-making process and not for acquisition of an asset or a right of a permanent character, the possession of which is a condition of the carrying on of the business, the expenditure may be regarded as revenue expenditure. This court went on to observe that the provisions of the English Income-tax Act in this regard are somewhat different from those of the Indian Income-tax Act. It referred to the English case of Texas Land and Mortgage Co. v. William Holtham [1894] 3 TC 255, 260, where a mortgage company had raised money by the issue of debentures and debenture stock and incurred expenses in this connection. The English High Court said that the expenses could not be deducted as trading expenses because the amount paid was for raising capital. Differing from the observations made therein, this court observed that a loan is a liability and has to be repaid and in its opinion it is erroneous to consider a liability as an asset or an advantage. This court disagreed with the English view that borrowing money by the issue of debentures was an acquisition of capital asset and that any commission or expenditure incurred in respect thereof was of a capital nature. It said : " we are of the opinion that (a) the loan obtained is not an asset or advantage of an enduring nature ; (b) that the expenditure was made for securing the use of money for a certain period ; and (c) that it is irrelevant to consider the object with which the loan was obtained. Consequently, in the circumstances of the case, the expenditure was revenue expenditure within section 10(2)(xv) ". The same ratio would apply here alsoOur attention was drawn to the case of Lomax (Inspector of Taxes) v. Peter Dixon and Son Ltd., a decision of the English Court of Appeal reported in, where the English Court had treated discount or premium in the hands of the recipient as a receipt of a capital nature. But the character of payment in relation to the payer can be different from the character of that payment in the hands of the recipient. In the light of the ratio laid down by this court in the case of India Cements Ltd., any liability incurred for the purpose of obtaining the loan would be revenue expenditure. 11. The Tribunal, however, held that since the entire liability to pay the discount had been incurred in the accounting year in question, the assessee was entitled to deduct the entire amount of Rs. 3, 00, 000 in that accounting year. This conclusion does not appear to be justified looking to the nature of the liability. It is true that the liability has been incurred in the accounting year. But the liability is a continuing liability which stretches over a period of 12 years. It is, therefore, a liability spread over a period of 12 years. Ordinarily, revenue expenditure which is incurred wholly and exclusively for the purpose of business must be allowed in its entirety in the year in which it is incurred. It cannot be spread over a number of years even if the assessee has written it off in his books over a period of years. However, the facts may justify an assessee who has incurred expenditure in a particular year to spread and claim it over a period of ensuing years. In fact, allowing the entire expenditure in one year might give a very distorted picture of the profits of a particular year. Thus in the case of Hindustan Aluminium Corporation Ltd. v. CIT, the Calcutta High Court upheld the claim of the assessee to spread out a lump sum payment to secure technical assistance and training over a number of years and allowed a proportionate deduction in the accounting year in questionIssuing debentures at a discount is another such instance where, although the assessee has incurred the liability to pay the discount in the year of issue of debentures, the payment is to secure a benefit over a number of years. There is a continuing benefit to the business of the company over the entire period. The liability should, therefore, be spread over the period of the debentures. 12. The appellant, therefore, had, in its return, correctly claimed a deduction only in respect of the proportionate part of discount of Rs. 12, 500 over the relevant accounting period in question. In this connection, we agree with the reasoning and conclusion of the Madhya Pradesh High Court in the case of M. P. Financial Corporation v. CIT. The view that we have taken is also in conformity with the accounting practice of showing the discount in the " discount on debentures account " which is written off over the period of the debentures. 13. | 1[ds]The Madhya Pradesh High Court also referred to the judgment of the Madras High Court which is under challenge before us and differed from it, preferring the decision of the Calcutta High Court in the case of CIT v. Indian Jute Mills Association. The Madhya Pradesh High Court held that the assessee would not be justified in claiming deduction of the entire amount of discount in the accounting year in question but it would nevertheless be entitled to proportionate deduction spread over the period for which the bonds would remain outstandingTherefore, when a company issues debentures at a discount, it incurs a liability to pay a larger amount than what it has borrowed, at a future date. We need not go into the question whether this additional liability equivalent to the discount, which is incurred in praesenti but is payable in future, represents deferred interest or not. That may depend upon the totality of circumstances relating to the issue of debentures, including its terms. The liability, however, to pay the discounted amount over and above the amount received for the debentures, is a liability which has been incurred by the company for the purposes of its business in order to generate funds for its business activities. The amounts so obtained by issue of debentures are used by the company for the purposes of its business. This would, therefore, be expenditureSection 37(1) further requires that the expenditure should not be of a capital natureThe appellant, therefore, had, in its return, correctly claimed a deduction only in respect of the proportionate part of discount of Rs. 12, 500 over the relevant accounting period in question. In this connection, we agree with the reasoning and conclusion of the Madhya Pradesh High Court in the case of M. P. Financial Corporation v. CIT. The view that we have taken is also in conformity with the accounting practice of showing the discount in the " discount on debentures account " which is written off over the period of the debentures | 1 | 4,534 | 369 | ### 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:
used by the company for the purposes of its business. This would, therefore, be expenditureSection 37(1) further requires that the expenditure should not be of a capital nature. In the case of India Cements Ltd. v. CIT (SC) the appellant-company had obtained a loan of Rs. 40 lakhs from the Industrial Finance Corporation secured by a charge on its fixed assets. In connection with this loan it spent a sum of Rs. 84, 633 towards stamp duty, registration fees, lawyers fees, etc., and claimed this amount as business expenditure. This court considered whether the expenditure so incurred was business expenditure or whether it was capital expenditure. This court quoted with approval the observations of Shah J. in Bombay Steam Navigation Co. (1953) P. Ltd. v. CIT that whether a particular expenditure is revenue expenditure incurred for the purpose of business must be determined on a consideration of all the facts and circumstances, and by the application of principles of commercial trading. The question must be viewed in the larger context of business necessity or expediency. If the outgoing or expenditure is so related to the carrying on or conduct of the business, that it may be regarded as an integral part of the profit-making process and not for acquisition of an asset or a right of a permanent character, the possession of which is a condition of the carrying on of the business, the expenditure may be regarded as revenue expenditure. This court went on to observe that the provisions of the English Income-tax Act in this regard are somewhat different from those of the Indian Income-tax Act. It referred to the English case of Texas Land and Mortgage Co. v. William Holtham [1894] 3 TC 255, 260, where a mortgage company had raised money by the issue of debentures and debenture stock and incurred expenses in this connection. The English High Court said that the expenses could not be deducted as trading expenses because the amount paid was for raising capital. Differing from the observations made therein, this court observed that a loan is a liability and has to be repaid and in its opinion it is erroneous to consider a liability as an asset or an advantage. This court disagreed with the English view that borrowing money by the issue of debentures was an acquisition of capital asset and that any commission or expenditure incurred in respect thereof was of a capital nature. It said : " we are of the opinion that (a) the loan obtained is not an asset or advantage of an enduring nature ; (b) that the expenditure was made for securing the use of money for a certain period ; and (c) that it is irrelevant to consider the object with which the loan was obtained. Consequently, in the circumstances of the case, the expenditure was revenue expenditure within section 10(2)(xv) ". The same ratio would apply here alsoOur attention was drawn to the case of Lomax (Inspector of Taxes) v. Peter Dixon and Son Ltd., a decision of the English Court of Appeal reported in, where the English Court had treated discount or premium in the hands of the recipient as a receipt of a capital nature. But the character of payment in relation to the payer can be different from the character of that payment in the hands of the recipient. In the light of the ratio laid down by this court in the case of India Cements Ltd., any liability incurred for the purpose of obtaining the loan would be revenue expenditure. 11. The Tribunal, however, held that since the entire liability to pay the discount had been incurred in the accounting year in question, the assessee was entitled to deduct the entire amount of Rs. 3, 00, 000 in that accounting year. This conclusion does not appear to be justified looking to the nature of the liability. It is true that the liability has been incurred in the accounting year. But the liability is a continuing liability which stretches over a period of 12 years. It is, therefore, a liability spread over a period of 12 years. Ordinarily, revenue expenditure which is incurred wholly and exclusively for the purpose of business must be allowed in its entirety in the year in which it is incurred. It cannot be spread over a number of years even if the assessee has written it off in his books over a period of years. However, the facts may justify an assessee who has incurred expenditure in a particular year to spread and claim it over a period of ensuing years. In fact, allowing the entire expenditure in one year might give a very distorted picture of the profits of a particular year. Thus in the case of Hindustan Aluminium Corporation Ltd. v. CIT, the Calcutta High Court upheld the claim of the assessee to spread out a lump sum payment to secure technical assistance and training over a number of years and allowed a proportionate deduction in the accounting year in questionIssuing debentures at a discount is another such instance where, although the assessee has incurred the liability to pay the discount in the year of issue of debentures, the payment is to secure a benefit over a number of years. There is a continuing benefit to the business of the company over the entire period. The liability should, therefore, be spread over the period of the debentures. 12. The appellant, therefore, had, in its return, correctly claimed a deduction only in respect of the proportionate part of discount of Rs. 12, 500 over the relevant accounting period in question. In this connection, we agree with the reasoning and conclusion of the Madhya Pradesh High Court in the case of M. P. Financial Corporation v. CIT. The view that we have taken is also in conformity with the accounting practice of showing the discount in the " discount on debentures account " which is written off over the period of the debentures. 13.
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1
### Explanation:
The Madhya Pradesh High Court also referred to the judgment of the Madras High Court which is under challenge before us and differed from it, preferring the decision of the Calcutta High Court in the case of CIT v. Indian Jute Mills Association. The Madhya Pradesh High Court held that the assessee would not be justified in claiming deduction of the entire amount of discount in the accounting year in question but it would nevertheless be entitled to proportionate deduction spread over the period for which the bonds would remain outstandingTherefore, when a company issues debentures at a discount, it incurs a liability to pay a larger amount than what it has borrowed, at a future date. We need not go into the question whether this additional liability equivalent to the discount, which is incurred in praesenti but is payable in future, represents deferred interest or not. That may depend upon the totality of circumstances relating to the issue of debentures, including its terms. The liability, however, to pay the discounted amount over and above the amount received for the debentures, is a liability which has been incurred by the company for the purposes of its business in order to generate funds for its business activities. The amounts so obtained by issue of debentures are used by the company for the purposes of its business. This would, therefore, be expenditureSection 37(1) further requires that the expenditure should not be of a capital natureThe appellant, therefore, had, in its return, correctly claimed a deduction only in respect of the proportionate part of discount of Rs. 12, 500 over the relevant accounting period in question. In this connection, we agree with the reasoning and conclusion of the Madhya Pradesh High Court in the case of M. P. Financial Corporation v. CIT. The view that we have taken is also in conformity with the accounting practice of showing the discount in the " discount on debentures account " which is written off over the period of the debentures
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Nrc Limited & Another Vs. Appellate Authority For Industrial & Financial Reconstruction & Others | the petitioner company and respondent no.13. However, that by itself would not lead to a conclusion that the Board has no further powers in respect of a property which has been agreed to be sold by registration of an agreement for sale. Every case has to be considered by the Board in the peculiar facts and circumstances of that case with the sole intention to bring back the company out of its losses and make it a viable venture while protecting the public interest as well as the interest of all other constituents of the company. In the instant case the recovery of the Banks due from the company is in excess of Rs.240 Crores and they are all nationalised banks. The remaining land i.e. land beyond the agreements between the petitioner company and respondent no.13 is about 100 acres. It is not known as to the exact acreage available by way of surplus to dispose off from this 100 acres so as to raise additional finance. The petitioner was to receive Rs.120.64 Cr (or Rs.124 Crores) by way of balance consideration from Respondent no.13. As per the company the payment due to the ex-employees and to the employees who opted for ERS works out to Rs.55 crores. Admittedly the employees on the rolls have yet to receive their legal dues either as per the settlement which is under challenge before this Court or otherwise and it is the claim of the employees that the recovery of the employees dues may be around Rs.80 crores.During the course of hearing we were also informed that if the company has to become viable, its employees strength has to be less than 2000 which means at least another 900 to 1000 employees will have to opt for ERS or for settlement of their legal dues on separation by any other mode legally recognised. We are informed by Mr. Talsania, learned Senior Counsel for the company that it requires Rs.25 crores for revamping and Rs.30 crores by way of working capital thus making a total of Rs.55 crores and this figure is on the basis that the company was to receive Rs.124 crores from respondent no.13. When we asked as to what would be the realistic amount to make the company viable, we were informed that it needs a total of about Rs.120 crores. If all these amounts are taken into consideration the petitioner - company requires more than Rs.200 crores for being available at its disposal so as to venture into making it viable and make it operational. These are the figures which could not be disputed on the face of the record placed before us and if that be so, the amount of Rs.124 crores which was expected to be received from respondent no.13 may not take the company anywhere in its efforts for rehabilitation or restructuring. The company requires more funds and to be generated from its existing assets.25. Before the Board as well as the Appellate Authority, it was submitted by the unions of employees that the consideration of Rs.166 crores for the land under sale transaction was an underestimate and it was not a realistic market price for a total land of 344/350 crores, even if the land proposed to be reserved and admeasuring 18 acres for housing colony of employees, is deducted. Our attention was invited to the estimates received and placed before the Board as well. One estimate gives the market price of the said land at Rs.220 crores whereas the other estimate gave the market price beyond Rs.500 crores. The MOU for the transaction was in the year 2006 and the first public notice was issued by respondent no.13 in April 2008 inviting the objections. By the time the Board was considering this application for restructuring filed under Section 15 of SICA a period of more than 3 years had already gone by. The Board in its efforts to make the company viable is required to consider all the financial resources and keep in mind the possibility of no financial institution coming forward to provide for additional funds, so as to explore the internal resources like the assets and in that process we do not find any impediment in the powers of the Board to call upon the parties to vary the terms of the existing agreements between the petitioner company and respondent no.13. In Section 22(3) of SICA, the Parliament has specifically used the words, "or shall be enforceable with such adaptations and in such manner as may be specified by the Board." The language of Section 22(3), therefore, aims at empowering the Board to modify the terms of existing agreements in respect of the assets of the company and, therefore, it would be permissible for the Board to take all such steps to ensure that the consideration of the land under sale is revised upwards. Ultimately the aim of the Board would be to make the company operations viable and in that regard the powers under Section 22(3) of SICA cannot be read in a restricted language.26. We were informed that out of the total consideration, an amount of Rs.76.26 crores has been received by the company and the balance consideration is Rs.92 crores. The company and respondent no.13 claim that they have signed one more agreement on 17th August 2010 and pursuant to the same, respondent no.13 has taken over possession of a total of 270 acres out of the land covered by the agreements. The order passed by the Board or the impugned order did not envisage any such step of signing the supplementary agreement so as to hand over possession of the land and in our view this development will have no bearing when the Board considers the scheme for restructuring and as would be framed by the operating agency, while exercising its power under Section 22(3) of SICA and the entire land covered by the two earlier agreements i.e. 344/350 acres continues to be an existing asset of the company27. | 1[ds]As per the Appellate Authority the provisions of Section 22A will not apply to the agreement for sale already entered into, registered and acted upon in the process of transaction and had it been the intention of the legislature to cover the past transactions within the ambit of Section 22A, the provision for suspension of existing contracts etc. would not have been provided undersubsection (3) of Section 22of SICA. Readiness and willingness of the parties to the sale agreement to honour the contract is also a paramount consideration, as per the Appellate Authority.20.We are not impressed by the reasoning set out by the Appellate Authority so as to interfere with the order passed by the Board. Section 22A of the SICA empowers the Board to issue appropriate directions that may be necessary in the interest of the sick industrial company, its creditors, shareholders, in public interest, not to dispose off, except with the consent of the Board, any of its assets and this term "any of its assets" will have to mean, "any of its existing assets", as on the date the reference is made and the BIFR passes the order.In the instant case, both the agreement for sale dated 1/3/2007 and the supplementary agreement for sale dated 29/9/2007 were on record before the Board as well as the Appellate Authority. We have gone through the terms and conditions of the said agreements. Undoubtedly, these are the agreements for sale and they are not sale deeds. We have also noted that the transactions are of conditional sale and it cannot be held that it is a concluded sale transaction passing on the title of the subject land to respondent no.13 either on part payment or on full payment of the consideration.It is thus clear that the company itself accepted in no uncertain words that the land under the agreements for sale continued to be its property / asset as on the day the reference application under Section 15(1) of SICA was submitted. Just because all the banks had given NOC for release of its charge on the subject land, it cannot be said that the Board was not empowered to bring the land within the ambit of SectionSo long as it continued to be the asset of the company the Board has unfettered powers under Section 22A and all that it has to examine is the public interest, interest of the company, its shareholders and employees etc. The Board is a body of experts as is clear from the preamble of the Act and the scheme of Section 22 and Section 22A empowers the Board to take all such measures which, in the opinion of the Board, are necessary to bring the company out of its sickness and make it viable on implementation of the scheme framed by the operating agency. The Appellate Authority fell in gross errors in holding that the agreements were concluded / finalised by the registered documents and, therefore the Board could not have exercised the powers under SectionIf the body of experts on the material available before it has exercised a discretion in respect of an existing property, in our opinion, the Appellate Authority ought to be slow in interfering with such discretion unless it was satisfied that the exercise of such discretion was against public interest or the interest of the company or the interest of the employees or the creditors or the shareholders or any other constituents of the company.Even otherwise also we have gone through the terms of both the agreements for sale i.e. the first agreement dated 1/3/2007 and the supplementary agreement for sale dated 29/9/2007. There is no condition in any of these agreements to hand over the possession of the land or part of it on receiving the part payments or full payments of consideration. The agreements do envisage that the ownership of the land would stand transferred to respondent no.13 only on completion of all formalities and clearance by the competent authorities. In our considered opinion, therefore, the Board was fully justified in putting restrictions on the subject land as well and bringing it within the ambit of Sectionof SICA. We, therefore, confirm the view taken by the Board and consequently the view taken by the Appellate Authority is unsustainable, and it is an overindulgence by the Appellatethe instant case the recovery of the Banks due from the company is in excess of Rs.240 Crores and they are all nationalised banks. The remaining land i.e. land beyond the agreements between the petitioner company and respondent no.13 is about 100 acres. It is not known as to the exact acreage available by way of surplus to dispose off from this 100 acres so as to raise additional finance. The petitioner was to receive Rs.120.64 Cr (or Rs.124 Crores) by way of balance consideration from Respondent no.13. As per the company the payment due to theand to the employees who opted for ERS works out to Rs.55 crores. Admittedly the employees on the rolls have yet to receive their legal dues either as per the settlement which is under challenge before this Court or otherwise and it is the claim of the employees that the recovery of the employees dues may be around Rs.80order passed by the Board or the impugned order did not envisage any such step of signing the supplementary agreement so as to hand over possession of the land and in our view this development will have no bearing when the Board considers the scheme for restructuring and as would be framed by the operating agency, while exercising its power under Section 22(3) of SICA and the entire land covered by the two earlier agreements i.e. 344/350 acres continues to be an existing asset of the company | 1 | 8,762 | 1,028 | ### 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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the petitioner company and respondent no.13. However, that by itself would not lead to a conclusion that the Board has no further powers in respect of a property which has been agreed to be sold by registration of an agreement for sale. Every case has to be considered by the Board in the peculiar facts and circumstances of that case with the sole intention to bring back the company out of its losses and make it a viable venture while protecting the public interest as well as the interest of all other constituents of the company. In the instant case the recovery of the Banks due from the company is in excess of Rs.240 Crores and they are all nationalised banks. The remaining land i.e. land beyond the agreements between the petitioner company and respondent no.13 is about 100 acres. It is not known as to the exact acreage available by way of surplus to dispose off from this 100 acres so as to raise additional finance. The petitioner was to receive Rs.120.64 Cr (or Rs.124 Crores) by way of balance consideration from Respondent no.13. As per the company the payment due to the ex-employees and to the employees who opted for ERS works out to Rs.55 crores. Admittedly the employees on the rolls have yet to receive their legal dues either as per the settlement which is under challenge before this Court or otherwise and it is the claim of the employees that the recovery of the employees dues may be around Rs.80 crores.During the course of hearing we were also informed that if the company has to become viable, its employees strength has to be less than 2000 which means at least another 900 to 1000 employees will have to opt for ERS or for settlement of their legal dues on separation by any other mode legally recognised. We are informed by Mr. Talsania, learned Senior Counsel for the company that it requires Rs.25 crores for revamping and Rs.30 crores by way of working capital thus making a total of Rs.55 crores and this figure is on the basis that the company was to receive Rs.124 crores from respondent no.13. When we asked as to what would be the realistic amount to make the company viable, we were informed that it needs a total of about Rs.120 crores. If all these amounts are taken into consideration the petitioner - company requires more than Rs.200 crores for being available at its disposal so as to venture into making it viable and make it operational. These are the figures which could not be disputed on the face of the record placed before us and if that be so, the amount of Rs.124 crores which was expected to be received from respondent no.13 may not take the company anywhere in its efforts for rehabilitation or restructuring. The company requires more funds and to be generated from its existing assets.25. Before the Board as well as the Appellate Authority, it was submitted by the unions of employees that the consideration of Rs.166 crores for the land under sale transaction was an underestimate and it was not a realistic market price for a total land of 344/350 crores, even if the land proposed to be reserved and admeasuring 18 acres for housing colony of employees, is deducted. Our attention was invited to the estimates received and placed before the Board as well. One estimate gives the market price of the said land at Rs.220 crores whereas the other estimate gave the market price beyond Rs.500 crores. The MOU for the transaction was in the year 2006 and the first public notice was issued by respondent no.13 in April 2008 inviting the objections. By the time the Board was considering this application for restructuring filed under Section 15 of SICA a period of more than 3 years had already gone by. The Board in its efforts to make the company viable is required to consider all the financial resources and keep in mind the possibility of no financial institution coming forward to provide for additional funds, so as to explore the internal resources like the assets and in that process we do not find any impediment in the powers of the Board to call upon the parties to vary the terms of the existing agreements between the petitioner company and respondent no.13. In Section 22(3) of SICA, the Parliament has specifically used the words, "or shall be enforceable with such adaptations and in such manner as may be specified by the Board." The language of Section 22(3), therefore, aims at empowering the Board to modify the terms of existing agreements in respect of the assets of the company and, therefore, it would be permissible for the Board to take all such steps to ensure that the consideration of the land under sale is revised upwards. Ultimately the aim of the Board would be to make the company operations viable and in that regard the powers under Section 22(3) of SICA cannot be read in a restricted language.26. We were informed that out of the total consideration, an amount of Rs.76.26 crores has been received by the company and the balance consideration is Rs.92 crores. The company and respondent no.13 claim that they have signed one more agreement on 17th August 2010 and pursuant to the same, respondent no.13 has taken over possession of a total of 270 acres out of the land covered by the agreements. The order passed by the Board or the impugned order did not envisage any such step of signing the supplementary agreement so as to hand over possession of the land and in our view this development will have no bearing when the Board considers the scheme for restructuring and as would be framed by the operating agency, while exercising its power under Section 22(3) of SICA and the entire land covered by the two earlier agreements i.e. 344/350 acres continues to be an existing asset of the company27.
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### Explanation:
As per the Appellate Authority the provisions of Section 22A will not apply to the agreement for sale already entered into, registered and acted upon in the process of transaction and had it been the intention of the legislature to cover the past transactions within the ambit of Section 22A, the provision for suspension of existing contracts etc. would not have been provided undersubsection (3) of Section 22of SICA. Readiness and willingness of the parties to the sale agreement to honour the contract is also a paramount consideration, as per the Appellate Authority.20.We are not impressed by the reasoning set out by the Appellate Authority so as to interfere with the order passed by the Board. Section 22A of the SICA empowers the Board to issue appropriate directions that may be necessary in the interest of the sick industrial company, its creditors, shareholders, in public interest, not to dispose off, except with the consent of the Board, any of its assets and this term "any of its assets" will have to mean, "any of its existing assets", as on the date the reference is made and the BIFR passes the order.In the instant case, both the agreement for sale dated 1/3/2007 and the supplementary agreement for sale dated 29/9/2007 were on record before the Board as well as the Appellate Authority. We have gone through the terms and conditions of the said agreements. Undoubtedly, these are the agreements for sale and they are not sale deeds. We have also noted that the transactions are of conditional sale and it cannot be held that it is a concluded sale transaction passing on the title of the subject land to respondent no.13 either on part payment or on full payment of the consideration.It is thus clear that the company itself accepted in no uncertain words that the land under the agreements for sale continued to be its property / asset as on the day the reference application under Section 15(1) of SICA was submitted. Just because all the banks had given NOC for release of its charge on the subject land, it cannot be said that the Board was not empowered to bring the land within the ambit of SectionSo long as it continued to be the asset of the company the Board has unfettered powers under Section 22A and all that it has to examine is the public interest, interest of the company, its shareholders and employees etc. The Board is a body of experts as is clear from the preamble of the Act and the scheme of Section 22 and Section 22A empowers the Board to take all such measures which, in the opinion of the Board, are necessary to bring the company out of its sickness and make it viable on implementation of the scheme framed by the operating agency. The Appellate Authority fell in gross errors in holding that the agreements were concluded / finalised by the registered documents and, therefore the Board could not have exercised the powers under SectionIf the body of experts on the material available before it has exercised a discretion in respect of an existing property, in our opinion, the Appellate Authority ought to be slow in interfering with such discretion unless it was satisfied that the exercise of such discretion was against public interest or the interest of the company or the interest of the employees or the creditors or the shareholders or any other constituents of the company.Even otherwise also we have gone through the terms of both the agreements for sale i.e. the first agreement dated 1/3/2007 and the supplementary agreement for sale dated 29/9/2007. There is no condition in any of these agreements to hand over the possession of the land or part of it on receiving the part payments or full payments of consideration. The agreements do envisage that the ownership of the land would stand transferred to respondent no.13 only on completion of all formalities and clearance by the competent authorities. In our considered opinion, therefore, the Board was fully justified in putting restrictions on the subject land as well and bringing it within the ambit of Sectionof SICA. We, therefore, confirm the view taken by the Board and consequently the view taken by the Appellate Authority is unsustainable, and it is an overindulgence by the Appellatethe instant case the recovery of the Banks due from the company is in excess of Rs.240 Crores and they are all nationalised banks. The remaining land i.e. land beyond the agreements between the petitioner company and respondent no.13 is about 100 acres. It is not known as to the exact acreage available by way of surplus to dispose off from this 100 acres so as to raise additional finance. The petitioner was to receive Rs.120.64 Cr (or Rs.124 Crores) by way of balance consideration from Respondent no.13. As per the company the payment due to theand to the employees who opted for ERS works out to Rs.55 crores. Admittedly the employees on the rolls have yet to receive their legal dues either as per the settlement which is under challenge before this Court or otherwise and it is the claim of the employees that the recovery of the employees dues may be around Rs.80order passed by the Board or the impugned order did not envisage any such step of signing the supplementary agreement so as to hand over possession of the land and in our view this development will have no bearing when the Board considers the scheme for restructuring and as would be framed by the operating agency, while exercising its power under Section 22(3) of SICA and the entire land covered by the two earlier agreements i.e. 344/350 acres continues to be an existing asset of the company
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FRANKLIN TEMPLETON TRUSTEE SERVICES PRIVATE LIMITED AND ANOTHER Vs. AMRUTA GARG AND OTHERS ETC | liabilities as are due and payable under the scheme and after making appropriate provision for meeting the expenses connected with such winding up, the balance shall be paid to the unitholders in proportion to their respective interest in the assets of the scheme as on the date when the decision for winding up was taken. (3) …. (4) …. We would concede that, in the given case, some of the recurring expenses mentioned in clause (b) to Regulation 52(4) like audit fee, insurance premium, cost of statutory advertisements, etc., would be covered and would satisfy the requirement of clause (b) to Regulation 41(2). However, if and only when they fall under and meet the requirement of the expenses connected with the winding up can they be allowed under Regulation 41(2)(b). Such expenses are allowed not because of clause (b) to Regulation 52(4), but because the expenses incurred would satisfy the requirement of being connected with such winding up under Regulation 41(2)(b). Commission payable to the mutual fund distributers is certainly not an expense connected with the winding up of the scheme. 6. In the aforesaid background, FIFA has claimed that the commission payment due to the mutual fund distributors on and from 23rd April 2020 is an amount due and payable under the scheme, as it is an amount or payment that had accrued before the publication of notices under Regulation 39(2)(b), but was not paid as it was payable in future. Commission payable to mutual fund distributors is in the nature of trail, and therefore, is payment due for the services rendered to the unitholders prior to the winding up. This argument is farfetched and fallacious. 7. In our order dated 14th July 2021, we have explained that the expression due and payable has to be interpreted with reference to the context in which the words appear. In the context of the Regulations in question, we have held that the expression refers to the present liabilities which may be payable in praesenti or in futuro. There must be an existing obligation to pay though the appointed date of payment may not have arrived. Any liability which is not due and payable, in facts and in law, would not be covered by the expression due and payable See paragraph 78 in the judgment reported as (2021) 9 SCC 606 . Clause (b) to Regulation 52(4) refers to recurring expenses, that is, expenses which will recur from time to time. It does not refer to one-time payment which is deferred. The recurring liability is not a present liability, but an obligation which, on satisfaction of certain conditions, may accrue in future. The right to claim commission may not accrue and become due and payable. Distributor commission, as a recurring liability, is not payable if the unitholder(s) redeem the unit. Winding up of the scheme entails similar effects and consequences. 8. As noticed above, it is the asset management company which is entitled to charge fees and expenses in terms of sub-regulations (1) and (2) of Regulation 52. The mutual fund distributors are not entitled to direct payment from the unitholders. Payment to the distributors is made by the asset management company, from the amount that they deduct as a recurring expense in terms of Regulation 52(4)(b). On and after publication of the winding up notice in terms of Regulation 39(3)(b), the trustees and the asset management company cannot claim any payment on account of recurring expenses under clause (b) to sub- regulation (4) to Regulation 52. That being the position, as held above, the claim of FIFA has to be rejected. If the amount cannot be due and payable to the principal, the claim of the agent or a third party, in view of the Regulations, must also fail. 9. The claim of FIFA, on the basis of the Circular dated 22nd October 2018, which has been referred to above, is equally misconceived and untenable. The Circular dated 22 nd October 2018 bars the asset management company from making upfront payment or upfronting of any trail commission, except in case of inflows through Systematic Investment Plans. It is also stipulated that, when the Systematic Investment Plan is discontinued for a period for which commission is paid, the commission amount has to be recovered on pro rata basis from the distributor. As a deduction, it follows that on publication of notices in terms of Regulation 39(3)(b), the business of the mutual fund comes to a stop and therefore, on and from that date the trail commission is not payable, as the scheme is to be wound up and the money is to be collected and paid to the unitholders, in terms of and as per the mandate of Regulation 41. Even if a distributor renders some services to the unitholders after publication of the notice under Regulation 39(3)(b), it would not entitle him to claim an amount from the asset management company. The Circular dated 22nd October 2018 cannot override the Regulations. The Circular does not intend to do so. It has been issued to bring about transparency in expenses, reduce portfolio churning and mis-selling in mutual fund schemes. The intent behind specifying total expense ratio and the performance disclosure for mutual funds is to bring greater transparency in expenses and to not confer any right on the mutual fund distributors to claim expenses under clause (b) to Regulation 41(2), which pertains to the procedure and manner of winding up. 10. Franklin Templeton Trustee Services Private Limited and Franklin Templeton Asset Management (India) Private Limited have filed an affidavit before us stating that they have borne liquidation expenses amounting to approximately Rs. 40,00,00,000/- (Rupees Forty Crores) towards various services such as liquidators fee, disbursement expenses, fees for the e-voting platform and the scrutinizer for voting results, etc. It is stated by them that this amount is not intended to be charged to the six Schemes in the interest of the unitholders of the Schemes. We have taken the said statement on record. | 0[ds]3. At the outset, we must state that FIFA is claiming commission for the period from 23rd April 2020 and up to 17 th March 2021. The commission/service charges payable prior to 23rd April 2020 are not subject matter of the present application. 23rd April 2020 is relevant as it is the date of publication of notices under Regulation 39(3)(b). Accordingly, on and from the said date, the trustees/asset management company ceased to carry on business in respect of the six schemes so wound up. In our opinion, Regulation 52, which relates to and permits deduction of expenses including commission payable to the distributor, is applicable when the scheme is in operation, and not post the decision of the trustees in terms of Regulation 39(2)(a) read with Regulation 39(3), when, upon publication of notices, the ceasure mandate of Regulation 40 is triggered. On and from the date of publication of notices under Regulation 39(3)(b), the trustees/asset management company cannot carry on business activities, create or cancel units and issue or redeem units of the scheme. It would be a different matter if the unitholders do not approve the winding up of the scheme, which is not a fact in the present case, as the unitholders have consented to the winding up of the six Schemes in accordance with Regulation 18(15)(c).4. If we are to accept the contention of FIFA, the necessary sequitur is to also acknowledge and accept that the asset management company, even post the publication of notices under Regulation 39(3)(b), would be entitled to fees and expenses mentioned and covered by Regulation 52, as per the terms and quantum specified in sub-regulation 6 to Regulation 52. Sub-clause (c) to Regulation 52(6) specifies the percentage of total expenses of the scheme which is allowable, varying from 2.5% to 1.75% of the daily net assets. This, in our opinion, would not be a correct interpretation and lead to anomalies and tribulation with adverse consequences for the suffering unitholders, and undo the embargo directing the ceasure of business. Regulations 40 and 52 need to be read harmoniously. When read together, Regulation 52, authorising and specifying the limit of the fees and expenses payable to the asset management company, would apply only when the scheme is in operation, and not after publication of the notice under Clause (b) to sub-regulation 3 to Regulation 39 resulting in ceasure of any business activities in respect of the scheme to be wound up.We would concede that, in the given case, some of the recurring expenses mentioned in clause (b) to Regulation 52(4) like audit fee, insurance premium, cost of statutory advertisements, etc., would be covered and would satisfy the requirement of clause (b) to Regulation 41(2). However, if and only when they fall under and meet the requirement of the expenses connected with the winding up can they be allowed under Regulation 41(2)(b). Such expenses are allowed not because of clause (b) to Regulation 52(4), but because the expenses incurred would satisfy the requirement of being connected with such winding up under Regulation 41(2)(b). Commission payable to the mutual fund distributers is certainly not an expense connected with the winding up of the scheme.6. In the aforesaid background, FIFA has claimed that the commission payment due to the mutual fund distributors on and from 23rd April 2020 is an amount due and payable under the scheme, as it is an amount or payment that had accrued before the publication of notices under Regulation 39(2)(b), but was not paid as it was payable in future. Commission payable to mutual fund distributors is in the nature of trail, and therefore, is payment due for the services rendered to the unitholders prior to the winding up.This argument is farfetched and fallacious.7. In our order dated 14th July 2021, we have explained that the expression due and payable has to be interpreted with reference to the context in which the words appear. In the context of the Regulations in question, we have held that the expression refers to the present liabilities which may be payable in praesenti or in futuro. There must be an existing obligation to pay though the appointed date of payment may not have arrived. Any liability which is not due and payable, in facts and in law, would not be covered by the expression due and payable See paragraph 78 in the judgment reported as (2021) 9 SCC 606 . Clause (b) to Regulation 52(4) refers to recurring expenses, that is, expenses which will recur from time to time. It does not refer to one-time payment which is deferred. The recurring liability is not a present liability, but an obligation which, on satisfaction of certain conditions, may accrue in future. The right to claim commission may not accrue and become due and payable. Distributor commission, as a recurring liability, is not payable if the unitholder(s) redeem the unit. Winding up of the scheme entails similar effects and consequences.8. As noticed above, it is the asset management company which is entitled to charge fees and expenses in terms of sub-regulations (1) and (2) of Regulation 52. The mutual fund distributors are not entitled to direct payment from the unitholders. Payment to the distributors is made by the asset management company, from the amount that they deduct as a recurring expense in terms of Regulation 52(4)(b). On and after publication of the winding up notice in terms of Regulation 39(3)(b), the trustees and the asset management company cannot claim any payment on account of recurring expenses under clause (b) to sub- regulation (4) to Regulation 52. That being the position, as held above, the claim of FIFA has to be rejected. If the amount cannot be due and payable to the principal, the claim of the agent or a third party, in view of the Regulations, must also fail.9. The claim of FIFA, on the basis of the Circular dated 22nd October 2018, which has been referred to above, is equally misconceived and untenable. The Circular dated 22 nd October 2018 bars the asset management company from making upfront payment or upfronting of any trail commission, except in case of inflows through Systematic Investment Plans. It is also stipulated that, when the Systematic Investment Plan is discontinued for a period for which commission is paid, the commission amount has to be recovered on pro rata basis from the distributor. As a deduction, it follows that on publication of notices in terms of Regulation 39(3)(b), the business of the mutual fund comes to a stop and therefore, on and from that date the trail commission is not payable, as the scheme is to be wound up and the money is to be collected and paid to the unitholders, in terms of and as per the mandate of Regulation 41. Even if a distributor renders some services to the unitholders after publication of the notice under Regulation 39(3)(b), it would not entitle him to claim an amount from the asset management company. The Circular dated 22nd October 2018 cannot override the Regulations. The Circular does not intend to do so. It has been issued to bring about transparency in expenses, reduce portfolio churning and mis-selling in mutual fund schemes. The intent behind specifying total expense ratio and the performance disclosure for mutual funds is to bring greater transparency in expenses and to not confer any right on the mutual fund distributors to claim expenses under clause (b) to Regulation 41(2), which pertains to the procedure and manner of winding up.10. Franklin Templeton Trustee Services Private Limited and Franklin Templeton Asset Management (India) Private Limited have filed an affidavit before us stating that they have borne liquidation expenses amounting to approximately Rs. 40,00,00,000/- (Rupees Forty Crores) towards various services such as liquidators fee, disbursement expenses, fees for the e-voting platform and the scrutinizer for voting results, etc. It is stated by them that this amount is not intended to be charged to the six Schemes in the interest of the unitholders of the Schemes. We have taken the said statement on record. | 0 | 2,131 | 1,598 | ### 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:
liabilities as are due and payable under the scheme and after making appropriate provision for meeting the expenses connected with such winding up, the balance shall be paid to the unitholders in proportion to their respective interest in the assets of the scheme as on the date when the decision for winding up was taken. (3) …. (4) …. We would concede that, in the given case, some of the recurring expenses mentioned in clause (b) to Regulation 52(4) like audit fee, insurance premium, cost of statutory advertisements, etc., would be covered and would satisfy the requirement of clause (b) to Regulation 41(2). However, if and only when they fall under and meet the requirement of the expenses connected with the winding up can they be allowed under Regulation 41(2)(b). Such expenses are allowed not because of clause (b) to Regulation 52(4), but because the expenses incurred would satisfy the requirement of being connected with such winding up under Regulation 41(2)(b). Commission payable to the mutual fund distributers is certainly not an expense connected with the winding up of the scheme. 6. In the aforesaid background, FIFA has claimed that the commission payment due to the mutual fund distributors on and from 23rd April 2020 is an amount due and payable under the scheme, as it is an amount or payment that had accrued before the publication of notices under Regulation 39(2)(b), but was not paid as it was payable in future. Commission payable to mutual fund distributors is in the nature of trail, and therefore, is payment due for the services rendered to the unitholders prior to the winding up. This argument is farfetched and fallacious. 7. In our order dated 14th July 2021, we have explained that the expression due and payable has to be interpreted with reference to the context in which the words appear. In the context of the Regulations in question, we have held that the expression refers to the present liabilities which may be payable in praesenti or in futuro. There must be an existing obligation to pay though the appointed date of payment may not have arrived. Any liability which is not due and payable, in facts and in law, would not be covered by the expression due and payable See paragraph 78 in the judgment reported as (2021) 9 SCC 606 . Clause (b) to Regulation 52(4) refers to recurring expenses, that is, expenses which will recur from time to time. It does not refer to one-time payment which is deferred. The recurring liability is not a present liability, but an obligation which, on satisfaction of certain conditions, may accrue in future. The right to claim commission may not accrue and become due and payable. Distributor commission, as a recurring liability, is not payable if the unitholder(s) redeem the unit. Winding up of the scheme entails similar effects and consequences. 8. As noticed above, it is the asset management company which is entitled to charge fees and expenses in terms of sub-regulations (1) and (2) of Regulation 52. The mutual fund distributors are not entitled to direct payment from the unitholders. Payment to the distributors is made by the asset management company, from the amount that they deduct as a recurring expense in terms of Regulation 52(4)(b). On and after publication of the winding up notice in terms of Regulation 39(3)(b), the trustees and the asset management company cannot claim any payment on account of recurring expenses under clause (b) to sub- regulation (4) to Regulation 52. That being the position, as held above, the claim of FIFA has to be rejected. If the amount cannot be due and payable to the principal, the claim of the agent or a third party, in view of the Regulations, must also fail. 9. The claim of FIFA, on the basis of the Circular dated 22nd October 2018, which has been referred to above, is equally misconceived and untenable. The Circular dated 22 nd October 2018 bars the asset management company from making upfront payment or upfronting of any trail commission, except in case of inflows through Systematic Investment Plans. It is also stipulated that, when the Systematic Investment Plan is discontinued for a period for which commission is paid, the commission amount has to be recovered on pro rata basis from the distributor. As a deduction, it follows that on publication of notices in terms of Regulation 39(3)(b), the business of the mutual fund comes to a stop and therefore, on and from that date the trail commission is not payable, as the scheme is to be wound up and the money is to be collected and paid to the unitholders, in terms of and as per the mandate of Regulation 41. Even if a distributor renders some services to the unitholders after publication of the notice under Regulation 39(3)(b), it would not entitle him to claim an amount from the asset management company. The Circular dated 22nd October 2018 cannot override the Regulations. The Circular does not intend to do so. It has been issued to bring about transparency in expenses, reduce portfolio churning and mis-selling in mutual fund schemes. The intent behind specifying total expense ratio and the performance disclosure for mutual funds is to bring greater transparency in expenses and to not confer any right on the mutual fund distributors to claim expenses under clause (b) to Regulation 41(2), which pertains to the procedure and manner of winding up. 10. Franklin Templeton Trustee Services Private Limited and Franklin Templeton Asset Management (India) Private Limited have filed an affidavit before us stating that they have borne liquidation expenses amounting to approximately Rs. 40,00,00,000/- (Rupees Forty Crores) towards various services such as liquidators fee, disbursement expenses, fees for the e-voting platform and the scrutinizer for voting results, etc. It is stated by them that this amount is not intended to be charged to the six Schemes in the interest of the unitholders of the Schemes. We have taken the said statement on record.
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to be read harmoniously. When read together, Regulation 52, authorising and specifying the limit of the fees and expenses payable to the asset management company, would apply only when the scheme is in operation, and not after publication of the notice under Clause (b) to sub-regulation 3 to Regulation 39 resulting in ceasure of any business activities in respect of the scheme to be wound up.We would concede that, in the given case, some of the recurring expenses mentioned in clause (b) to Regulation 52(4) like audit fee, insurance premium, cost of statutory advertisements, etc., would be covered and would satisfy the requirement of clause (b) to Regulation 41(2). However, if and only when they fall under and meet the requirement of the expenses connected with the winding up can they be allowed under Regulation 41(2)(b). Such expenses are allowed not because of clause (b) to Regulation 52(4), but because the expenses incurred would satisfy the requirement of being connected with such winding up under Regulation 41(2)(b). Commission payable to the mutual fund distributers is certainly not an expense connected with the winding up of the scheme.6. In the aforesaid background, FIFA has claimed that the commission payment due to the mutual fund distributors on and from 23rd April 2020 is an amount due and payable under the scheme, as it is an amount or payment that had accrued before the publication of notices under Regulation 39(2)(b), but was not paid as it was payable in future. Commission payable to mutual fund distributors is in the nature of trail, and therefore, is payment due for the services rendered to the unitholders prior to the winding up.This argument is farfetched and fallacious.7. In our order dated 14th July 2021, we have explained that the expression due and payable has to be interpreted with reference to the context in which the words appear. In the context of the Regulations in question, we have held that the expression refers to the present liabilities which may be payable in praesenti or in futuro. There must be an existing obligation to pay though the appointed date of payment may not have arrived. Any liability which is not due and payable, in facts and in law, would not be covered by the expression due and payable See paragraph 78 in the judgment reported as (2021) 9 SCC 606 . Clause (b) to Regulation 52(4) refers to recurring expenses, that is, expenses which will recur from time to time. It does not refer to one-time payment which is deferred. The recurring liability is not a present liability, but an obligation which, on satisfaction of certain conditions, may accrue in future. The right to claim commission may not accrue and become due and payable. Distributor commission, as a recurring liability, is not payable if the unitholder(s) redeem the unit. Winding up of the scheme entails similar effects and consequences.8. As noticed above, it is the asset management company which is entitled to charge fees and expenses in terms of sub-regulations (1) and (2) of Regulation 52. The mutual fund distributors are not entitled to direct payment from the unitholders. Payment to the distributors is made by the asset management company, from the amount that they deduct as a recurring expense in terms of Regulation 52(4)(b). On and after publication of the winding up notice in terms of Regulation 39(3)(b), the trustees and the asset management company cannot claim any payment on account of recurring expenses under clause (b) to sub- regulation (4) to Regulation 52. That being the position, as held above, the claim of FIFA has to be rejected. If the amount cannot be due and payable to the principal, the claim of the agent or a third party, in view of the Regulations, must also fail.9. The claim of FIFA, on the basis of the Circular dated 22nd October 2018, which has been referred to above, is equally misconceived and untenable. The Circular dated 22 nd October 2018 bars the asset management company from making upfront payment or upfronting of any trail commission, except in case of inflows through Systematic Investment Plans. It is also stipulated that, when the Systematic Investment Plan is discontinued for a period for which commission is paid, the commission amount has to be recovered on pro rata basis from the distributor. As a deduction, it follows that on publication of notices in terms of Regulation 39(3)(b), the business of the mutual fund comes to a stop and therefore, on and from that date the trail commission is not payable, as the scheme is to be wound up and the money is to be collected and paid to the unitholders, in terms of and as per the mandate of Regulation 41. Even if a distributor renders some services to the unitholders after publication of the notice under Regulation 39(3)(b), it would not entitle him to claim an amount from the asset management company. The Circular dated 22nd October 2018 cannot override the Regulations. The Circular does not intend to do so. It has been issued to bring about transparency in expenses, reduce portfolio churning and mis-selling in mutual fund schemes. The intent behind specifying total expense ratio and the performance disclosure for mutual funds is to bring greater transparency in expenses and to not confer any right on the mutual fund distributors to claim expenses under clause (b) to Regulation 41(2), which pertains to the procedure and manner of winding up.10. Franklin Templeton Trustee Services Private Limited and Franklin Templeton Asset Management (India) Private Limited have filed an affidavit before us stating that they have borne liquidation expenses amounting to approximately Rs. 40,00,00,000/- (Rupees Forty Crores) towards various services such as liquidators fee, disbursement expenses, fees for the e-voting platform and the scrutinizer for voting results, etc. It is stated by them that this amount is not intended to be charged to the six Schemes in the interest of the unitholders of the Schemes. We have taken the said statement on record.
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N. Rangachari Vs. Bharat Sanchar Nigam Ltd | (supra) binding on us, has postulated that a director in a company cannot be deemed to be incharge of and responsible to the company for the conduct of his business in the context of Section 141 of the Act. Bound as we are by that decision, no further discussion on this aspect appears to be warranted. 14. A person normally having business or commercial dealings with a company, would satisfy himself about its creditworthiness and reliability by looking at its promoters and Board of Directors and the nature and extent of its business and its Memorandum or Articles of Association. Other than that, he may not be aware of the arrangements within the company in regard to its management, daily routine, etc. Therefore, when a cheque issued to him by the company is dishonoured, he is expected only to be aware generally of who are incharge of the affairs of the company. It is not reasonable to expect him to know whether the person who signed the cheque was instructed to do so or whether he has been deprived of his authority to do so when he actually signed the cheque. Those are matters peculiarly within the knowledge of the company and those in charge of it. So, all that a payee of a cheque that is dishonoured can be expected to allege is that the persons named in the complaint are in charge of its affairs. The Directors are prima facie in that position. 15. In fact, in an earlier decision in Monaben Ketanbhai Shah & Anr. Vs. State of Gujarat & Ors. [(2004) 7 S.C.C. 15], two learned judges of this Court noticed that: "The laudable object of preventing bouncing of cheques and sustaining the credibility of commercial transactions resulting in enactment of Sections 138 and 141 has to be borne in mind." 16. In the light of the ratio in S.M.S. Pharmaceuticals Ltd. (supra) what is to be looked into is whether in the complaint, in addition to asserting that the appellant and another are the directors of the company, it is further alleged that they are incharge of and responsible to the company for the conduct of the business of the company. We find that such an allegation is clearly made in the complaint which we have quoted above. Learned Senior Counsel for the appellant argued that in Saroj Kumar Poddar case (supra), this Court had found the complaint unsustainable only for the reason that there was no specific averment that at the time of issuance of the cheque that was dishonoured, the persons named in the complaint were incharge of the affairs of the company. With great respect, we see no warrant for assuming such a position in the context of the binding ratio in S.M.S. Pharmaceuticals Ltd. (supra) and in view of the position of the Directors in a company as explained above. 17. In Rajesh Bajaj Vs. State of NCT of Delhi & Ors. [A.I.R. 1999 S.C. 1216], two learned judges of this Court stated: "For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence." In M/s Bilakchand Gyanchand Co. Vs. A Chinnaswami [A.I.R. 1999 S.C. 2182], this Court held that a complaint under Section 138 of the Act was not liable to be quashed on the ground that the notice as contemplated by Section 138 of the Act was addressed to the Director of the Company at its office address and not to the Company itself. The view was reiterated in Rajneesh Aggarwal Vs. Amit J. Bhalla [A.I.R. 2001 S.C. 518]. These decisions indicate that too technical an approach on the sufficiency of notice and the contents of the complaint is not warranted in the context of the purpose sought to be achieved by the introduction of Sections 138 and 141 of the Act.18. In the case on hand, reading the complaint as a whole, it is clear that the allegations in the complaint are that at the time at which the two dishonoured cheques were issued by the company, the appellant and another were the Directors of the company and were incharge of the affairs of the company. It is not proper to split hairs in reading the complaint so as to come to a conclusion that the allegations as a whole are not sufficient to show that at the relevant point of time the appellant and the other are not alleged to be persons incharge of the affairs of the company. Obviously, the complaint refers to the point of time when the two cheques were issued, their presentment, dishonour and failure to pay in spite of notice of dishonour. We have no hesitation in overruling the argument in that behalf by the learned Senior Counsel for the appellant.19. We think that, in the circumstances, the High Court has rightly come to the conclusion that it is not a fit case for exercise of jurisdiction under Section 482 of the Code of Criminal Procedure for quashing the complaint. In fact, an advertence to Sections 138 and 141 of the Negotiable Instruments Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the Officers incharge of the affairs of the company to show that they are not liable to be convicted. Any restriction on their power or existence of any special circumstance that makes them not liable is something that is peculiarly within their knowledge and it is for them to establish at the trial such a restriction or to show that at the relevant time they were not incharge of the affairs of the company. Reading the complaint as a whole, we are satisfied that it is a case where the contentions sought to be raised by the appellant can only be dealt with after the conclusion of the trial. | 0[ds]18. In the case on hand, reading the complaint as a whole, it is clear that the allegations in the complaint are that at the time at which the two dishonoured cheques were issued by the company, the appellant and another were the Directors of the company and were incharge of the affairs of the company. It is not proper to split hairs in reading the complaint so as to come to a conclusion that the allegations as a whole are not sufficient to show that at the relevant point of time the appellant and the other are not alleged to be persons incharge of the affairs of the company. Obviously, the complaint refers to the point of time when the two cheques were issued, their presentment, dishonour and failure to pay in spite of notice of dishonour. We have no hesitation in overruling the argument in that behalf by the learned Senior Counsel for the appellant.19. We think that, in the circumstances, the High Court has rightly come to the conclusion that it is not a fit case for exercise of jurisdiction under Section 482 of the Code of Criminal Procedure for quashing the complaint. In fact, an advertence to Sections 138 and 141 of the Negotiable Instruments Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the Officers incharge of the affairs of the company to show that they are not liable to be convicted. Any restriction on their power or existence of any special circumstance that makes them not liable is something that is peculiarly within their knowledge and it is for them to establish at the trial such a restriction or to show that at the relevant time they were not incharge of the affairs of the company. Reading the complaint as a whole, we are satisfied that it is a case where the contentions sought to be raised by the appellant can only be dealt with after the conclusion of the trial. | 0 | 4,800 | 366 | ### 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:
(supra) binding on us, has postulated that a director in a company cannot be deemed to be incharge of and responsible to the company for the conduct of his business in the context of Section 141 of the Act. Bound as we are by that decision, no further discussion on this aspect appears to be warranted. 14. A person normally having business or commercial dealings with a company, would satisfy himself about its creditworthiness and reliability by looking at its promoters and Board of Directors and the nature and extent of its business and its Memorandum or Articles of Association. Other than that, he may not be aware of the arrangements within the company in regard to its management, daily routine, etc. Therefore, when a cheque issued to him by the company is dishonoured, he is expected only to be aware generally of who are incharge of the affairs of the company. It is not reasonable to expect him to know whether the person who signed the cheque was instructed to do so or whether he has been deprived of his authority to do so when he actually signed the cheque. Those are matters peculiarly within the knowledge of the company and those in charge of it. So, all that a payee of a cheque that is dishonoured can be expected to allege is that the persons named in the complaint are in charge of its affairs. The Directors are prima facie in that position. 15. In fact, in an earlier decision in Monaben Ketanbhai Shah & Anr. Vs. State of Gujarat & Ors. [(2004) 7 S.C.C. 15], two learned judges of this Court noticed that: "The laudable object of preventing bouncing of cheques and sustaining the credibility of commercial transactions resulting in enactment of Sections 138 and 141 has to be borne in mind." 16. In the light of the ratio in S.M.S. Pharmaceuticals Ltd. (supra) what is to be looked into is whether in the complaint, in addition to asserting that the appellant and another are the directors of the company, it is further alleged that they are incharge of and responsible to the company for the conduct of the business of the company. We find that such an allegation is clearly made in the complaint which we have quoted above. Learned Senior Counsel for the appellant argued that in Saroj Kumar Poddar case (supra), this Court had found the complaint unsustainable only for the reason that there was no specific averment that at the time of issuance of the cheque that was dishonoured, the persons named in the complaint were incharge of the affairs of the company. With great respect, we see no warrant for assuming such a position in the context of the binding ratio in S.M.S. Pharmaceuticals Ltd. (supra) and in view of the position of the Directors in a company as explained above. 17. In Rajesh Bajaj Vs. State of NCT of Delhi & Ors. [A.I.R. 1999 S.C. 1216], two learned judges of this Court stated: "For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence." In M/s Bilakchand Gyanchand Co. Vs. A Chinnaswami [A.I.R. 1999 S.C. 2182], this Court held that a complaint under Section 138 of the Act was not liable to be quashed on the ground that the notice as contemplated by Section 138 of the Act was addressed to the Director of the Company at its office address and not to the Company itself. The view was reiterated in Rajneesh Aggarwal Vs. Amit J. Bhalla [A.I.R. 2001 S.C. 518]. These decisions indicate that too technical an approach on the sufficiency of notice and the contents of the complaint is not warranted in the context of the purpose sought to be achieved by the introduction of Sections 138 and 141 of the Act.18. In the case on hand, reading the complaint as a whole, it is clear that the allegations in the complaint are that at the time at which the two dishonoured cheques were issued by the company, the appellant and another were the Directors of the company and were incharge of the affairs of the company. It is not proper to split hairs in reading the complaint so as to come to a conclusion that the allegations as a whole are not sufficient to show that at the relevant point of time the appellant and the other are not alleged to be persons incharge of the affairs of the company. Obviously, the complaint refers to the point of time when the two cheques were issued, their presentment, dishonour and failure to pay in spite of notice of dishonour. We have no hesitation in overruling the argument in that behalf by the learned Senior Counsel for the appellant.19. We think that, in the circumstances, the High Court has rightly come to the conclusion that it is not a fit case for exercise of jurisdiction under Section 482 of the Code of Criminal Procedure for quashing the complaint. In fact, an advertence to Sections 138 and 141 of the Negotiable Instruments Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the Officers incharge of the affairs of the company to show that they are not liable to be convicted. Any restriction on their power or existence of any special circumstance that makes them not liable is something that is peculiarly within their knowledge and it is for them to establish at the trial such a restriction or to show that at the relevant time they were not incharge of the affairs of the company. Reading the complaint as a whole, we are satisfied that it is a case where the contentions sought to be raised by the appellant can only be dealt with after the conclusion of the trial.
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18. In the case on hand, reading the complaint as a whole, it is clear that the allegations in the complaint are that at the time at which the two dishonoured cheques were issued by the company, the appellant and another were the Directors of the company and were incharge of the affairs of the company. It is not proper to split hairs in reading the complaint so as to come to a conclusion that the allegations as a whole are not sufficient to show that at the relevant point of time the appellant and the other are not alleged to be persons incharge of the affairs of the company. Obviously, the complaint refers to the point of time when the two cheques were issued, their presentment, dishonour and failure to pay in spite of notice of dishonour. We have no hesitation in overruling the argument in that behalf by the learned Senior Counsel for the appellant.19. We think that, in the circumstances, the High Court has rightly come to the conclusion that it is not a fit case for exercise of jurisdiction under Section 482 of the Code of Criminal Procedure for quashing the complaint. In fact, an advertence to Sections 138 and 141 of the Negotiable Instruments Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the Officers incharge of the affairs of the company to show that they are not liable to be convicted. Any restriction on their power or existence of any special circumstance that makes them not liable is something that is peculiarly within their knowledge and it is for them to establish at the trial such a restriction or to show that at the relevant time they were not incharge of the affairs of the company. Reading the complaint as a whole, we are satisfied that it is a case where the contentions sought to be raised by the appellant can only be dealt with after the conclusion of the trial.
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Arunima Baruah Vs. Union Of India | think not. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226 5 . But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If, however, a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the court to entertain the writ petition. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another court. But this Court has also held in Chandra Bhan Gosain v. State of Orissa 6 that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the Court will not entertain the application under Article 32. But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground, this Court has, in a suitable case, entertained the application under Article 32 7 . Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of, the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 226 8 . Therefore, the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ petition on merits. 25. There is another doctrine which cannot also be lost sight of. The court would not ordinarily permit a party to pursue two parallel remedies in respect of the same subject matter. [See Jai Singh v. Union of India and Others, (1977) 1 SCC 1] But, where one proceeding has been terminated without determination of the lis, can it be said that the disputant shall be without a remedy? 26. It will be in the fitness of context to notice M/s. Tilokchand and Motichand & Others v. H.B. Munshi and Another [(1969) 1 SCC 110] wherein it is stated: 6. Then again this Court refrains from acting under Article 32 if the party has already moved the High Court under Article 226. This constitutes a comity between the Supreme Court and the High Court. Similarly, when a party had already moved the High Court with a similar complaint and for the same relief and failed, this Court insists on an appeal to be brought before it and does not allow fresh proceedings to be started. In this connection the principle of res judicata has been applied, although the expression is some what inapt and unfortunate. The reason of the rule no doubt is public policy which Coke summarized as interest reipublicae res judicatas non rescindi but the motivating factor is the existence of another parallel jurisdiction in another Court and that Court having been moved, this Court insists on bringing its decision before this Court for review. Again this Court distinguishes between cases in which a speaking order on merits has been passed. Where the order is not speaking or the matter has been disposed of on some other ground at the threshold, this Court in a suitable case entertains the application before itself. Another restraint which this Court puts on itself is that it does not allow a new ground to be taken in appeal. In the same way, this Court has refrained from taking action when a better remedy is to move the High Court under Article 226 which can go into the controversy more comprehensively than this Court can under Article 32. [Emphasis supplied] 27. Existence of an alternative remedy by itself, as was propounded in S.J.S. Business Enterprises (P) Ltd. (supra) may not be a relevant factor as it is one thing to say that there exists an alternative remedy and, therefore, the court would not exercise its discretionary jurisdiction but it is another thing to say that the court refuses to do so on the ground of suppression of facts. 28. Ubi jus ibi remedium is a well known concept. The court while refusing to grant a relief to a person who comes with a genuine grievance in an arguable case should be given a hearing. [See Bhagubhai Dhanabhai Khalasi (supra)] In this case, however, the appellant had suppressed a material fact. It is evident that the writ petition was filed only when no order of interim injunction was passed. It was obligatory on the part of the appellant to disclose the said fact. 29. In this case, however, suppression of filing of the suit is no longer a material fact. The learned Single Judge and the Division Bench of the High Court may be correct that, in a case of this nature, the courts jurisdiction may not be invoked but that would not mean that another writ petition would not lie. When another writ petition is filed disclosing all the facts, the appellant would be approaching the writ court with a pair of clean hands, the court at that point of time will be entitled to determine the case on merits having regard to the human right of the appellant to access to justice and keeping in view the fact that judicial review is a basic feature of the Constitution of India. 30. The judgment of the High Court, in a case of this nature, shall not operate as a res judicata. | 0[ds]16. The courts jurisdiction to determine the lis between the parties, therefore, may be viewed from the human rights concept of access to justice. The same, however, would not mean that the court will have no jurisdiction to deny equitable relief when the complainant does not approach the court with a pair of clean hands but to what extent such relief should be denied is the question17. It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question18. In Moody v. Cox [1917 (2) Ch 71], it was held:It is contended that the fact that Moody has given those bribes prevents him from getting any relief in a Court of Equity. The first consequence of his having offered the bribes is that the vendors could have rescinded the contract. But they were not bound to do so. They had the right to say No, we are well satisfied with the contract; it is a very good one for us; we affirm it. The proposition put forward by counsel for the defendants is: It does not matter that the contract has been affirmed; you still can claim no relief of any equitable character in regard to that contract because you gave a bribe in respect of it. If there is a mistake in the contract, you cannot rectify it, if you desire to rescind the contract, you cannot rescind it, for that is equitable relief. With some doubt they said: We do not think you can get an injunction to have the contract performed, though the other side have affirmed it, because an injunction may be equitable remedy. When one asks on what principle this is supposed to be based one receives in answer the maxim that any one coming to equity must come with clean hands. It think the expression clean hands is used more often in the text books than it is in the judgments, though it is occasionally used in the judgments, but I was very much surprised to hear that when a contract, obtained by the giving of a bribe, had been affirmed by the person who had a primary right to affirm it, not being an illegal contract, the courts of Equity could be so scrupulous that they would refuse any relief not connected at all with the bribe. I was glad to find that it was not the case, because I think it is quite clear that the passage in Dering v. Earl of Winchelsea 1 Cox, 318 which has been referred to shows that equity will not apply the principle about clean hands unless the depravity, the dirt in question on the hand, has an immediate and necessary relation to the equity sued for. In this case the bribe has no immediate relation to rectification, if rectification were asked, or to rescission in connection with a matter not in any way connected with the bribe. Therefore that point, which was argued with great strenuousness by counsel for the defendant Hatt, appears to me to fail, and we have to consider the merits of the case19. In Halsburys Laws of England, Fourth Edition, Vol. 16, pages, the law is stated in the following terms:1303. He who seeks equity must do equity. In granting relief peculiar to its own jurisdiction a court of equity acts upon the rule that he who seeks equity must do equity. By this it is not meant that the court can impose arbitrary conditions upon a plaintiff simply because he stands in that position on the record. The rule means that a man who comes to seek the aid of a court of equity to enforce a claim must be prepared to submit in such proceedings to any directions which the known principles of a court of equity may make it proper to give; he must do justice as to the matters in respect of which the assistance of equity is asked. In a court of law it is otherwise: when the plaintiff is found to be entitled to judgment, the law must take its course; no terms can be imposed1305. He who comes into equity must come with clean hands. A court of equity refuses relief to a plaintiff whose conduct in regard to the subject matter of the litigation has been improper. This was formerly expressed by the maxim he who has committed iniquity shall not have equity, and relief was refused where a transaction was based on the plaintiffs fraud or misrepresentation, or where the plaintiff sought to enforce a security improperly obtained, or where he claimed a remedy for a breach of trust which he had himself procured and whereby he had obtained money. Later it was said that the plaintiff in equity must come with perfect propriety of conduct, or with clean hands. In application of the principle a person will not be allowed to assert his title to property which he has dealt with so as to defeat his creditors or evade tax, for he may not maintain an action by setting up his own fraudulent designThe maxim does not, however, mean that equity strikes at depravity in a general way; the cleanliness required is to be judged in relation to the relief sought, and the conduct complained of must have an immediate and necessary relation to the equity sued for; it must be depravity in a legal as well as in a moral sense. Thus, fraud on the part of a minor deprives him of his right to equitable relief notwithstanding his disability. Where the transaction is itself unlawful it is not necessary to have recourse to this principle. In equity, just as at law, no suit lies in general in respect of an illegal transaction, but this is on the ground of its illegality, not by reason of the plaintiffs demerits20. [See also Snells Equity, Thirtieth Edition, Pages2 and Jai Narain Parasrampuria (Dead) and Others v. Pushpa Devi Saraf and Others, (2006) 7 SCC 756] 21. In Spry on Equitable Remedies, Fourth Edition, page 5, referring to Moody v. Cox (supra) and Meyers v. Casey [(1913) 17 C.L.R. 90], it is stated :that the absence of clean hands is of no account unless the depravity, the dirt in question on the hand, has an immediate and necessary relation to the equity sued for. When such exceptions or qualifications are examined it becomes clear that the maxim that predicates a requirement of clean hands cannot properly be regarded as setting out a rule that is either precise or capable of satisfactory operation22. Although the aforementioned statement of law was made in connection with a suit for specific performance of contract, the same may have a bearing in determining a case of this nature alsoIn these cases, however, it is necessary that the failure to disclose the matters in question, and the consequent error or misapprehension of the defendant, should be such that performance of his obligations would bring about substantial hardship or unfairness that outweighs matters tending in favour of specific performance. Thus the failure of the plaintiff to explain a matter of fact, or even, in some circumstances, to correct a misunderstanding of law, may incline the court to take a somewhat altered view of considerations of hardship, and this will be the case especially where it appears that at the relevant times the plaintiff knew of the ignorance or misapprehension of the defendant but nonetheless did not take steps to provide information or to correct the material error, or a fortiori, where he put the defendant off his guard or hurried him into making a decision without proper enquiry24. In S.J.S. Business Enterprises (P) Ltd. (supra), it was stated:14. Assuming that the explanation given by the appellant that the suit had been filed by one of the Directors of the Company without the knowledge of the Director who almost simultaneously approached the High Court under Article 226 is unbelievable ( sic ), the question still remains whether the filing of the suit can be said to be a fact material to the disposal of the writ petition on merits. We think not. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226 5 . But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If, however, a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the court to entertain the writ petition. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another court. But this Court has also held in Chandra Bhan Gosain v. State of Orissa 6 that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the Court will not entertain the application under Article 32. But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground, this Court has, in a suitable case, entertained the application under Article 32 7 . Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of, the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 226 8 . Therefore, the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ petition on merits26. It will be in the fitness of context to notice M/s. Tilokchand and Motichand & Others v. H.B. Munshi and Another [(1969) 1 SCC 110] wherein it is stated:6. Then again this Court refrains from acting under Article 32 if the party has already moved the High Court under Article 226. This constitutes a comity between the Supreme Court and the High Court. Similarly, when a party had already moved the High Court with a similar complaint and for the same relief and failed, this Court insists on an appeal to be brought before it and does not allow fresh proceedings to be started. In this connection the principle of res judicata has been applied, although the expression is some what inapt and unfortunate. The reason of the rule no doubt is public policy which Coke summarized asinterest reipublicae res judicatas non rescindi but the motivating factor is the existence of another parallel jurisdiction in another Court and that Court having been moved, this Court insists on bringing its decision before this Court for review. Again this Court distinguishes between cases in which a speaking order on merits has been passed. Where the order is not speaking or the matter has been disposed of on some other ground at the threshold, this Court in a suitable case entertains the application before itself. Another restraint which this Court puts on itself is that it does not allow a new ground to be taken in appeal. In the same way, this Court has refrained from taking action when a better remedy is to move the High Court under Article 226 which can go into the controversy more comprehensively than this Court can under Article 3227. Existence of an alternative remedy by itself, as was propounded in S.J.S. Business Enterprises (P) Ltd. (supra) may not be a relevant factor as it is one thing to say that there exists an alternative remedy and, therefore, the court would not exercise its discretionary jurisdiction but it is another thing to say that the court refuses to do so on the ground of suppression of facts28. Ubi jus ibi remedium is a well known concept. The court while refusing to grant a relief to a person who comes with a genuine grievance in an arguable case should be given a hearing. [See Bhagubhai Dhanabhai Khalasi (supra)] In this case, however, the appellant had suppressed a material fact. It is evident that the writ petition was filed only when no order of interim injunction was passed. It was obligatory on the part of the appellant to disclose the said fact29. In this case, however, suppression of filing of the suit is no longer a material fact. The learned Single Judge and the Division Bench of the High Court may be correct that, in a case of this nature, the courts jurisdiction may not be invoked but that would not mean that another writ petition would not lie. When another writ petition is filed disclosing all the facts, the appellant would be approaching the writ court with a pair of clean hands, the court at that point of time will be entitled to determine the case on merits having regard to the human right of the appellant to access to justice and keeping in view the fact that judicial review is a basic feature of the Constitution of India30. The judgment of the High Court, in a case of this nature, shall not operate as a res judicata. | 0 | 3,949 | 2,646 | ### Instruction:
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think not. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226 5 . But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If, however, a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the court to entertain the writ petition. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another court. But this Court has also held in Chandra Bhan Gosain v. State of Orissa 6 that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the Court will not entertain the application under Article 32. But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground, this Court has, in a suitable case, entertained the application under Article 32 7 . Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of, the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 226 8 . Therefore, the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ petition on merits. 25. There is another doctrine which cannot also be lost sight of. The court would not ordinarily permit a party to pursue two parallel remedies in respect of the same subject matter. [See Jai Singh v. Union of India and Others, (1977) 1 SCC 1] But, where one proceeding has been terminated without determination of the lis, can it be said that the disputant shall be without a remedy? 26. It will be in the fitness of context to notice M/s. Tilokchand and Motichand & Others v. H.B. Munshi and Another [(1969) 1 SCC 110] wherein it is stated: 6. Then again this Court refrains from acting under Article 32 if the party has already moved the High Court under Article 226. This constitutes a comity between the Supreme Court and the High Court. Similarly, when a party had already moved the High Court with a similar complaint and for the same relief and failed, this Court insists on an appeal to be brought before it and does not allow fresh proceedings to be started. In this connection the principle of res judicata has been applied, although the expression is some what inapt and unfortunate. The reason of the rule no doubt is public policy which Coke summarized as interest reipublicae res judicatas non rescindi but the motivating factor is the existence of another parallel jurisdiction in another Court and that Court having been moved, this Court insists on bringing its decision before this Court for review. Again this Court distinguishes between cases in which a speaking order on merits has been passed. Where the order is not speaking or the matter has been disposed of on some other ground at the threshold, this Court in a suitable case entertains the application before itself. Another restraint which this Court puts on itself is that it does not allow a new ground to be taken in appeal. In the same way, this Court has refrained from taking action when a better remedy is to move the High Court under Article 226 which can go into the controversy more comprehensively than this Court can under Article 32. [Emphasis supplied] 27. Existence of an alternative remedy by itself, as was propounded in S.J.S. Business Enterprises (P) Ltd. (supra) may not be a relevant factor as it is one thing to say that there exists an alternative remedy and, therefore, the court would not exercise its discretionary jurisdiction but it is another thing to say that the court refuses to do so on the ground of suppression of facts. 28. Ubi jus ibi remedium is a well known concept. The court while refusing to grant a relief to a person who comes with a genuine grievance in an arguable case should be given a hearing. [See Bhagubhai Dhanabhai Khalasi (supra)] In this case, however, the appellant had suppressed a material fact. It is evident that the writ petition was filed only when no order of interim injunction was passed. It was obligatory on the part of the appellant to disclose the said fact. 29. In this case, however, suppression of filing of the suit is no longer a material fact. The learned Single Judge and the Division Bench of the High Court may be correct that, in a case of this nature, the courts jurisdiction may not be invoked but that would not mean that another writ petition would not lie. When another writ petition is filed disclosing all the facts, the appellant would be approaching the writ court with a pair of clean hands, the court at that point of time will be entitled to determine the case on merits having regard to the human right of the appellant to access to justice and keeping in view the fact that judicial review is a basic feature of the Constitution of India. 30. The judgment of the High Court, in a case of this nature, shall not operate as a res judicata.
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Enterprises (P) Ltd. (supra), it was stated:14. Assuming that the explanation given by the appellant that the suit had been filed by one of the Directors of the Company without the knowledge of the Director who almost simultaneously approached the High Court under Article 226 is unbelievable ( sic ), the question still remains whether the filing of the suit can be said to be a fact material to the disposal of the writ petition on merits. We think not. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226 5 . But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If, however, a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the court to entertain the writ petition. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another court. But this Court has also held in Chandra Bhan Gosain v. State of Orissa 6 that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the Court will not entertain the application under Article 32. But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground, this Court has, in a suitable case, entertained the application under Article 32 7 . Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of, the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 226 8 . Therefore, the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ petition on merits26. It will be in the fitness of context to notice M/s. Tilokchand and Motichand & Others v. H.B. Munshi and Another [(1969) 1 SCC 110] wherein it is stated:6. Then again this Court refrains from acting under Article 32 if the party has already moved the High Court under Article 226. This constitutes a comity between the Supreme Court and the High Court. Similarly, when a party had already moved the High Court with a similar complaint and for the same relief and failed, this Court insists on an appeal to be brought before it and does not allow fresh proceedings to be started. In this connection the principle of res judicata has been applied, although the expression is some what inapt and unfortunate. The reason of the rule no doubt is public policy which Coke summarized asinterest reipublicae res judicatas non rescindi but the motivating factor is the existence of another parallel jurisdiction in another Court and that Court having been moved, this Court insists on bringing its decision before this Court for review. Again this Court distinguishes between cases in which a speaking order on merits has been passed. Where the order is not speaking or the matter has been disposed of on some other ground at the threshold, this Court in a suitable case entertains the application before itself. Another restraint which this Court puts on itself is that it does not allow a new ground to be taken in appeal. In the same way, this Court has refrained from taking action when a better remedy is to move the High Court under Article 226 which can go into the controversy more comprehensively than this Court can under Article 3227. Existence of an alternative remedy by itself, as was propounded in S.J.S. Business Enterprises (P) Ltd. (supra) may not be a relevant factor as it is one thing to say that there exists an alternative remedy and, therefore, the court would not exercise its discretionary jurisdiction but it is another thing to say that the court refuses to do so on the ground of suppression of facts28. Ubi jus ibi remedium is a well known concept. The court while refusing to grant a relief to a person who comes with a genuine grievance in an arguable case should be given a hearing. [See Bhagubhai Dhanabhai Khalasi (supra)] In this case, however, the appellant had suppressed a material fact. It is evident that the writ petition was filed only when no order of interim injunction was passed. It was obligatory on the part of the appellant to disclose the said fact29. In this case, however, suppression of filing of the suit is no longer a material fact. The learned Single Judge and the Division Bench of the High Court may be correct that, in a case of this nature, the courts jurisdiction may not be invoked but that would not mean that another writ petition would not lie. When another writ petition is filed disclosing all the facts, the appellant would be approaching the writ court with a pair of clean hands, the court at that point of time will be entitled to determine the case on merits having regard to the human right of the appellant to access to justice and keeping in view the fact that judicial review is a basic feature of the Constitution of India30. The judgment of the High Court, in a case of this nature, shall not operate as a res judicata.
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Union Of India Vs. Delhi High Court Bar Asson | may subsequently hold any money for or on account of the defendant jointly with any other person and for the purposes of this sub-section, the shares of the joint holders in such amount shall be presumed, until the contrary is proved, to be equal. (iii) A copy of the notice shall be forwarded to the defendant at his last address known to the Recovery Officer and in the case of a joint account to all the joint holders at their last address known to the Recovery Officer. (iv) Save as otherwise provided in this sub-section, every person to whom a notice is issued under this sub-section shall be bound to comply with such notice, and, in particular, where any such notice is issued to a post office, bank, financial institution, or an insurer, it shall not be necessary for any pass book, deposit receipt, policy or any other document to be produced for the purpose of any entry, endorsement or the like to be made before the payment is made notwithstanding any rule, practice or requirement to the contrary. (v) Any claim respecting any property in relation to which a notice under this sub-section has been issued arising the date of the notice shall be void as against any demand contained in the notice. (vi) Where a person to whom a notice under this sub-section is sent objects to it by a statement on oath that the sum demanded or the part thereof is not due to the defendant or that he does not hold any money for or on account of the defendant, then, nothing contained in this sub-section shall be deemed to require such person to pay any such sum or part thereof, as the case may be, but if it is discovered that such statement was false in any material particular, such person shall be personally liable to the Recovery Officer to the extent of his own liability to the defendant on the date of the notice, or to the extent of the defendants liability for any sum due under this Act. whichever is less. (vii) The Recovery Officer may, at any time or from time to time, amend or revoke any notice under this sub-section or extent the time for making any payment in pursuance of such notice. (viii) The Recovery Officer shall grant a receipt for any amount paid in compliance with a notice issued issued under this sub-section, and the person so paying shall be fully discharged from his liability to the defendant to the extent of the amount so paid. (ix) Any person discharging any liability to the defendant after the receipt of a notice under this sub-section shall be personally liable to the Recovery Officer to the extent of his own liability to the defendant so discharged or to the extent of the defendants liability for any debt due number this Act, whichever is less. (x) If the person to whom a notice under this sub-section is sent fails to make payment in pursuance thereof to the Recovery Officer, he shall deemed to be a defendant in default in respect of the amount specified in the notice and further proceedings may be taken against him for the realisation of the amount as if it were a debt due from him in the manner provided in sections 25, 26 and 27 and the notice shall have the same effect as an attachment of a debt by the Recovery Officer in exercise of his powers under section 25. (4) The Recovery Officer may apply to the court in whose custody there is money belonging to the defendant for payment to him of the entire amount of such money, of it is more than the amount of debt, due, an amount sufficient to discharge the amount of debt so due. (4A) The Recovery Officer may, by order, at any stage of the execution of the certificate of recovery, require any person, and in case of a company, any of its officers against whom or which the certificate of recovery is issued, to declare on affidavit the particulars of his or its assets. (5) The Recovery Officer may recover any amount, of debt due from the defendant by distraint and sale of his movable property in the manner laid down in the Third Schedule to the Income-tax Act, 1961 (43 of 1961). While Section 25 provides for modes of recovery of debts either by attachment and sale or arrest of appointment of a receiver, Section 28 provides for modes of recovery in addition to the ones specified in Section 25. A perusal of the aforesaid provisions cannot lead one to the conclusion that the same are arbitrary, unreasonable or without any guidelines. It is quite clear that in order to recover the debts, the recovery officer has to attach and sell the immovable property and that for protection and preservation of the same, he has the power to appoint a Receiver for the management thereof. 30. By virtue of Section 29 of the Act, the provisions of the Second and Third Schedules to the Income-tax Act, 1961 and the Income-Tax (Certificate Proceedings) Rules, 1962, have become applicable for the realisation of the dues by the Recovery Officer. Detailed Procedure for recovery is contained in these schedules to the Income-Tax Act, including provisions relating to arrest and detention of the defaulter. It cannot, therefore, be said that the recovery officer would act in an arbitrary manner. Furthermore, Section 30, after amendment by the Amendment Act, 2000, gives a right to any person aggrieved by an order of the Recovery Officer, to prefer an appeal to the Tribunal. Thus now an appellate forum has been provided against any orders of the Recovery Officer which may not be in accordance with law. There is, therefore, sufficient safeguard which has been provided in the event of the Recovery Officer acting in an arbitrary or an unreasonable manner. The provisions of Sections 25 and 28 are, therefore, not bad in law. | 1[ds]In our opinion, entry 45 of List I would cover the types of legislation now enacted. Entry 45 of List I relates to Banking. Banking operations would, inter alia, include accepting of loans and deposits, granting of loans and recovery of the debts due to the bank. There can be little doubt that under Entry 45 of List I, it is the Parliament alone which can enact a law with regard to the conduct of business by the banks. Recovery of dues in an essential function of any banking institution. In exercise of its legislative power relating to banking, the Parliament can provide the mechanism by which monies due to the Banks and Financial Institutions can be recovered. The Tribunals have been set up in regard to the debts due to the banks. The special machinery of a Tribunal which has been constituted as per the Preamble of the Act, for expeditious adjudication and recovery of debts due to banks and financial institutions and for matters connected therewith or incidental thereto would squarely fall within the ambit of Entry 45 of List I. As none of the items in the lists are to be read in a narrow or restricted sense, the term Banking in Entry 45 would mean legislation regarding all aspects of Banking including ancillary or subsidiary matters relating to Banking. Setting up of an adjudicatory body like the Banking Tribunal relating to transactions in which banks and financial institutions are concerned would clearly fall under entry 45 of List I giving the Parliament specific power to legislate in relation thereto22. At the outset, we find that the Rule 12 is not happily worded. The reason for establishing banking tribunals being to expedite the disposal of the claims by the banks, the Parliament thought it proper only to require the principles of natural justice to be the guiding factor for the Tribunals in deciding the applications, as is evident from Section 22 of the Act. While the Tribunal has, no doubt, been given the power of summoning and enforcing the attendance of any witness and examining him on oath, but the Act does not contain any provision which makes it mandatory for the witness to be examined, if such a witness could be produced. Rule 12(6) has to be read harmoniously with the other provisions of the Act and the Rules. As we have already noticed, Rule 12(7) gives the Tribunal the power to act upon the affidavit of the applicant where the defendant denies his liability to pay the claims. Rules 12(6), if paraphrased, would read as follows: (1) The Tribunal may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit.... on such conditions as the Tribunal thinks reasonable; (2) The Tribunal may at any time for sufficient reason order ... that the affidavit of any witness may be read at the hearing, on such conditions as the Tribunal thinks reasonable23. In other words, the Tribunal has the power to require any particular fact to be proved by affidavit, or it may order the affidavit of any witness may be read at the hearing. While passing such an order, it must record sufficient reasons for the same. The proviso to Rule 12(6) would certainly apply only where the Tribunal chooses to issue a direction, on its own, for any particular fact to be proved by affidavit or the affidavit of a witness being read at the hearing. The said proviso refers to the desire of an applicant or defendant for the production of a witness for. In the setting in which the said proviso occurs, it would appear to us that once the parties have filed affidavits in support of their respective cases, it is only thereafter that the desire for a witness to bed can legitimately arise. It is at that time, if it appears to the Tribunal, that such a witness can be produced and it is necessary to do so and there is no desire to prolong the case that it shall require the witness to be present forn and in the event of his not appearing, then the affidavit shall not be taken into evidence. When the High Courts and the Supreme Court in exercise of their jurisdiction under Article 226 and Article 32 can decide questions of fact as well as law merely on the basis of documents and affidavits filed before it ordinarily, there should be no reason as to why a Tribunal, likewise, should not be able to decide the case merely on the basis of documents and affidavits before it. It is common knowledge that hardly any transaction with the Bank would be oral and without proper documentation, whether in the form of letters or formal agreements. In such an event the bona fide need for the oral examination of a witness should rarely arise. There has to be a very good reason to hold that affidavits, in such a case, would not be sufficient24. The manner in which a dispute is to be adjudicated upon is decided by the procedural laws which are enacted from time to time. It is because of the enactment of the Code of Civil Procedure that normally all disputes between the parties of a civil nature would be adjudicated upon by the civil courts. There is no absolute right in anyone to demand that his dispute is to be adjudicated upon only by a civil court. The decision of the Delhi High Court proceeds on the assumption that there is such a right. As we have already observed, it is by reason of the provisions of the Code of Civil Procedure that the civil courts had the right, prior to the enactment of the Debt Recovery Act, to decide the suits for recovery filed by the banks and financial institutions. This forum, namely, that of a civil court, now stands replaced by a banking tribunal in respect of the debts due to the bank. When in the Constitution Article 323 A and 323 B contemplate establishment of a tribunal and that does not erode the independence of the judiciary, there is no reason to presume that the banking tribunals and the appellate tribunals so constituted would not be independent, or that justice would be denied to the defendants or that the independence of the judiciary would stand eroded25. Such tribunals, whether the pertain tox or Excise and Customs or Administration, have now become an essential part of the judicial system in this country. Such specialised institutions may not strictly come within the concept of the judiciary, as envisaged by Article 50, but it cannot be presumed that such tribunals are not an effective part of the justice delivery system, like courts of law. It will be seen that for a person to be appointed as a Presiding Officer of a Tribunal, he should be one who is qualified to be a District Judge and, in case of appointment of the Presiding Officer of the Appellate Tribunal he is, or has been, qualified to be a Judge of a High Court or has been a member of the Indian Legal Service who has held a post in Grade I for at least three years or has held office as the Presiding Officer of a Tribunal for at least three years. Persons who are so appointed as Presiding Officers of the Tribunal or of the Appellate Tribunal would be well versed in law to be able to decide cases independently and judiciously. It has to be borne in mind that the decision of the Appellate Tribunal is not final, in the sense that the same can be subjected to judicial review by the High Court under Article 226 and 227 of the Constitution26. With the establishment of the Tribunals, Section 31 provides for the transfer of pending cases from Civil Courts to the Tribunal. We do not find such a provision being in any way bad in law. Once a Debt Recovery Tribunal has been established, and the jurisdiction of Courts barred by Section 18 of the Act, it would be only logical that any matter pending in the civil court should stand transferred to the Tribunal. This is what happened when the Central Administrative Tribunal was established. All cases pending in the High Courts stood transferred. Now that exclusive jurisdiction is vested in the Banking Tribunal, it is only in that forum that bank cases can be tried and, therefore, a provision like Section 31 was enacted27. With regard to the observations of the Delhi High Court in relation to the pecuniary jurisdiction of the tribunals and of the Delhi High Court, the Act has been enacted for the whole of India. In most of the States, the High Courts do not have original jurisdiction. In order to see that the Tribunal is not flood with cases where the amounts involved are not very large, the Act provides that it is only where the recovery of the money is more than Rs. 10 lacs that the Tribunal will have the jurisdiction to entertain the application under Section 19. With respect to suits for recovery of money less than Rs. 10 lacs, it is the subordinate courts which would continue to try them. In other words, for a claim of Rs. 10 lacs or more, exclusive jurisdiction has been conferred on the tribunal but for any amount less than Rs. 10 lacs, it is the ordinary civil courts which will have jurisdiction. The bifurcation of original jurisdiction between the Delhi High Court and the subordinate Courts is a matter which cannot have any bearing on the validity of the establishment of the Tribunal. It is only in those High Courts which have original jurisdiction that an anomalous situations arises where suits for recovery of money less than Rs. 10 lacs have to be decided by the High Courts while the tribunals have jurisdiction to decide suits for recovery of more than Rs. 10 lacs. This incongruous situation, which can be remedied by the High Court divesting itself of the original jurisdiction in regard to such claims and vesting the said jurisdiction with the subordinate courts or vice versa, cannot be a ground for holding that the Act is invalid28. At the time when the Guwahati High Court had rendered its decision there was only one Appellate Tribunal. It is for that reason that the Guwahati High Court had observed that the judicial review was illusory. Now, more Appellate Tribunals have been established and the inconvenience of the litigant in travelling a long distance to approach a Appellate Tribunal cannot be regarded as a making the judicial review of the Tribunals decision illusory. Furthermore, with the pendency jurisdiction of the Tribunal being of Rs. 10 lacs and above for a fairly large number of borrowers of small amounts, the civil courts are not divested of their jurisdiction29. The Guwahati High Court had held that Sections 25 and 28 are arbitrary and unreasonable, being without any guidelines or control. These observations were made prior to the amendment of Sections 25 and 2830. By virtue of Section 29 of the Act, the provisions of the Second and Third Schedules to thex Act, 1961 and thex (Certificate Proceedings) Rules, 1962, have become applicable for the realisation of the dues by the Recovery Officer. Detailed Procedure for recovery is contained in these schedules to thex Act, including provisions relating to arrest and detention of the defaulter. It cannot, therefore, be said that the recovery officer would act in an arbitrary manner. Furthermore, Section 30, after amendment by the Amendment Act, 2000, gives a right to any person aggrieved by an order of the Recovery Officer, to prefer an appeal to the Tribunal. Thus now an appellate forum has been provided against any orders of the Recovery Officer which may not be in accordance with law. There is, therefore, sufficient safeguard which has been provided in the event of the Recovery Officer acting in an arbitrary or an unreasonable manner. The provisions of Sections 25 and 28 are, therefore, not bad in law | 1 | 9,308 | 2,210 | ### 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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may subsequently hold any money for or on account of the defendant jointly with any other person and for the purposes of this sub-section, the shares of the joint holders in such amount shall be presumed, until the contrary is proved, to be equal. (iii) A copy of the notice shall be forwarded to the defendant at his last address known to the Recovery Officer and in the case of a joint account to all the joint holders at their last address known to the Recovery Officer. (iv) Save as otherwise provided in this sub-section, every person to whom a notice is issued under this sub-section shall be bound to comply with such notice, and, in particular, where any such notice is issued to a post office, bank, financial institution, or an insurer, it shall not be necessary for any pass book, deposit receipt, policy or any other document to be produced for the purpose of any entry, endorsement or the like to be made before the payment is made notwithstanding any rule, practice or requirement to the contrary. (v) Any claim respecting any property in relation to which a notice under this sub-section has been issued arising the date of the notice shall be void as against any demand contained in the notice. (vi) Where a person to whom a notice under this sub-section is sent objects to it by a statement on oath that the sum demanded or the part thereof is not due to the defendant or that he does not hold any money for or on account of the defendant, then, nothing contained in this sub-section shall be deemed to require such person to pay any such sum or part thereof, as the case may be, but if it is discovered that such statement was false in any material particular, such person shall be personally liable to the Recovery Officer to the extent of his own liability to the defendant on the date of the notice, or to the extent of the defendants liability for any sum due under this Act. whichever is less. (vii) The Recovery Officer may, at any time or from time to time, amend or revoke any notice under this sub-section or extent the time for making any payment in pursuance of such notice. (viii) The Recovery Officer shall grant a receipt for any amount paid in compliance with a notice issued issued under this sub-section, and the person so paying shall be fully discharged from his liability to the defendant to the extent of the amount so paid. (ix) Any person discharging any liability to the defendant after the receipt of a notice under this sub-section shall be personally liable to the Recovery Officer to the extent of his own liability to the defendant so discharged or to the extent of the defendants liability for any debt due number this Act, whichever is less. (x) If the person to whom a notice under this sub-section is sent fails to make payment in pursuance thereof to the Recovery Officer, he shall deemed to be a defendant in default in respect of the amount specified in the notice and further proceedings may be taken against him for the realisation of the amount as if it were a debt due from him in the manner provided in sections 25, 26 and 27 and the notice shall have the same effect as an attachment of a debt by the Recovery Officer in exercise of his powers under section 25. (4) The Recovery Officer may apply to the court in whose custody there is money belonging to the defendant for payment to him of the entire amount of such money, of it is more than the amount of debt, due, an amount sufficient to discharge the amount of debt so due. (4A) The Recovery Officer may, by order, at any stage of the execution of the certificate of recovery, require any person, and in case of a company, any of its officers against whom or which the certificate of recovery is issued, to declare on affidavit the particulars of his or its assets. (5) The Recovery Officer may recover any amount, of debt due from the defendant by distraint and sale of his movable property in the manner laid down in the Third Schedule to the Income-tax Act, 1961 (43 of 1961). While Section 25 provides for modes of recovery of debts either by attachment and sale or arrest of appointment of a receiver, Section 28 provides for modes of recovery in addition to the ones specified in Section 25. A perusal of the aforesaid provisions cannot lead one to the conclusion that the same are arbitrary, unreasonable or without any guidelines. It is quite clear that in order to recover the debts, the recovery officer has to attach and sell the immovable property and that for protection and preservation of the same, he has the power to appoint a Receiver for the management thereof. 30. By virtue of Section 29 of the Act, the provisions of the Second and Third Schedules to the Income-tax Act, 1961 and the Income-Tax (Certificate Proceedings) Rules, 1962, have become applicable for the realisation of the dues by the Recovery Officer. Detailed Procedure for recovery is contained in these schedules to the Income-Tax Act, including provisions relating to arrest and detention of the defaulter. It cannot, therefore, be said that the recovery officer would act in an arbitrary manner. Furthermore, Section 30, after amendment by the Amendment Act, 2000, gives a right to any person aggrieved by an order of the Recovery Officer, to prefer an appeal to the Tribunal. Thus now an appellate forum has been provided against any orders of the Recovery Officer which may not be in accordance with law. There is, therefore, sufficient safeguard which has been provided in the event of the Recovery Officer acting in an arbitrary or an unreasonable manner. The provisions of Sections 25 and 28 are, therefore, not bad in law.
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1
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independence of the judiciary, there is no reason to presume that the banking tribunals and the appellate tribunals so constituted would not be independent, or that justice would be denied to the defendants or that the independence of the judiciary would stand eroded25. Such tribunals, whether the pertain tox or Excise and Customs or Administration, have now become an essential part of the judicial system in this country. Such specialised institutions may not strictly come within the concept of the judiciary, as envisaged by Article 50, but it cannot be presumed that such tribunals are not an effective part of the justice delivery system, like courts of law. It will be seen that for a person to be appointed as a Presiding Officer of a Tribunal, he should be one who is qualified to be a District Judge and, in case of appointment of the Presiding Officer of the Appellate Tribunal he is, or has been, qualified to be a Judge of a High Court or has been a member of the Indian Legal Service who has held a post in Grade I for at least three years or has held office as the Presiding Officer of a Tribunal for at least three years. Persons who are so appointed as Presiding Officers of the Tribunal or of the Appellate Tribunal would be well versed in law to be able to decide cases independently and judiciously. It has to be borne in mind that the decision of the Appellate Tribunal is not final, in the sense that the same can be subjected to judicial review by the High Court under Article 226 and 227 of the Constitution26. With the establishment of the Tribunals, Section 31 provides for the transfer of pending cases from Civil Courts to the Tribunal. We do not find such a provision being in any way bad in law. Once a Debt Recovery Tribunal has been established, and the jurisdiction of Courts barred by Section 18 of the Act, it would be only logical that any matter pending in the civil court should stand transferred to the Tribunal. This is what happened when the Central Administrative Tribunal was established. All cases pending in the High Courts stood transferred. Now that exclusive jurisdiction is vested in the Banking Tribunal, it is only in that forum that bank cases can be tried and, therefore, a provision like Section 31 was enacted27. With regard to the observations of the Delhi High Court in relation to the pecuniary jurisdiction of the tribunals and of the Delhi High Court, the Act has been enacted for the whole of India. In most of the States, the High Courts do not have original jurisdiction. In order to see that the Tribunal is not flood with cases where the amounts involved are not very large, the Act provides that it is only where the recovery of the money is more than Rs. 10 lacs that the Tribunal will have the jurisdiction to entertain the application under Section 19. With respect to suits for recovery of money less than Rs. 10 lacs, it is the subordinate courts which would continue to try them. In other words, for a claim of Rs. 10 lacs or more, exclusive jurisdiction has been conferred on the tribunal but for any amount less than Rs. 10 lacs, it is the ordinary civil courts which will have jurisdiction. The bifurcation of original jurisdiction between the Delhi High Court and the subordinate Courts is a matter which cannot have any bearing on the validity of the establishment of the Tribunal. It is only in those High Courts which have original jurisdiction that an anomalous situations arises where suits for recovery of money less than Rs. 10 lacs have to be decided by the High Courts while the tribunals have jurisdiction to decide suits for recovery of more than Rs. 10 lacs. This incongruous situation, which can be remedied by the High Court divesting itself of the original jurisdiction in regard to such claims and vesting the said jurisdiction with the subordinate courts or vice versa, cannot be a ground for holding that the Act is invalid28. At the time when the Guwahati High Court had rendered its decision there was only one Appellate Tribunal. It is for that reason that the Guwahati High Court had observed that the judicial review was illusory. Now, more Appellate Tribunals have been established and the inconvenience of the litigant in travelling a long distance to approach a Appellate Tribunal cannot be regarded as a making the judicial review of the Tribunals decision illusory. Furthermore, with the pendency jurisdiction of the Tribunal being of Rs. 10 lacs and above for a fairly large number of borrowers of small amounts, the civil courts are not divested of their jurisdiction29. The Guwahati High Court had held that Sections 25 and 28 are arbitrary and unreasonable, being without any guidelines or control. These observations were made prior to the amendment of Sections 25 and 2830. By virtue of Section 29 of the Act, the provisions of the Second and Third Schedules to thex Act, 1961 and thex (Certificate Proceedings) Rules, 1962, have become applicable for the realisation of the dues by the Recovery Officer. Detailed Procedure for recovery is contained in these schedules to thex Act, including provisions relating to arrest and detention of the defaulter. It cannot, therefore, be said that the recovery officer would act in an arbitrary manner. Furthermore, Section 30, after amendment by the Amendment Act, 2000, gives a right to any person aggrieved by an order of the Recovery Officer, to prefer an appeal to the Tribunal. Thus now an appellate forum has been provided against any orders of the Recovery Officer which may not be in accordance with law. There is, therefore, sufficient safeguard which has been provided in the event of the Recovery Officer acting in an arbitrary or an unreasonable manner. The provisions of Sections 25 and 28 are, therefore, not bad in law
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Hill Son & Dinshaw Limited Vs. P.G. Pednekar & Others | towards resolving the industrial dispute which may be lingering between the employers and their workmen represented by their unions but even if at that stage such settlement does not take place and the industrial dispute gets referred for adjudication, even pending such disputes, the parties can arrive at amicable settlement which may be binding the parties to the settlement unlike settlement arrived at during conciliation proceedings which may be binding not only on the parties to the settlement but even to the entire labour force working in the concerned organisation even though they may not be members of the union which might have entered into settlement during conciliation proceedings". 10.In the case of Balmer Lawrie Workers Union and Anr. vs. Balmer Lawrie & Co.Ltd. and Ors. 1985 I CLR 103, clause 17 of the settlement entered into between the management and the recognised union came to be challenged and as per the said clause the company was to collect, from each workman, an amount equivalent to 15 per cent of the gross arrears payable to each employee under the settlement as contribution to the union fund and it was, in turn, to be paid to the union within three days of the payment of arrears. It was inter alia contended by the petitioner union that the said clause was in breach of the provisions of the Payment of Wages Act and while rejecting the challenge the Supreme Court observed: "It is well known that no deduction could be from the wages and salary payable to a workman governed by the Payment of Wages Act unless authorised by the Act. A settlement arrived at on consent of parties can however permit a deduction as it is the outcome of understanding between the parties even though such deduction may be not authorised or legally permissible under the Payment of Wages Act."11.In the instant case it is not disputed that the settlement arrived by the union with the appellant company was not in the course of conciliation proceedings. Therefore, it would be binding on the parties to the agreement namely the appellant company on the one hand and the union representing the respondent workman who was its member. In the circumstances, the respondent workman also would be ordinarily bound by the settlement entered into by his representative union with the company unless it is shown that the said settlement was ex facie unfair, unjust or malafide. No such case was even alleged much less made out by the respondent workman either before the Tribunal or before the learned single Judge. It is interesting to note that before the learned single Judge the only argument put forward on behalf of the respondent workman was that, he was not a party to the settlement and his consent was not taken by the union and, therefore, it was not binding to him. Once it is kept in view that the industrial dispute was raised by the union on behalf of the retrenched workmen including respondent workman, and it was an industrial dispute covered by section 2(k) it cannot be held that the settlement which was entered into under section 2(p) read with section 18(1) of the Act is not binding on the individual workman. 12.In the light of the aforesaid discussion it is not possible to sustain the finding of the learned single Judge that the settlement was not binding on the respondent workman on the ground that the workman was not a signatory to the settlement. 13.Ms. Shobha Gopal, however, drew our attention to the proviso to section 18(1) (Bombay Amendment) which reads as follows: "Provided that where there is a recognised union for any undertaking under any law for the time being in force, then such agreement not being an agreement in respect of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee shall be arrived at between the employer and the recognised union only and such agreement shall be binding on all persons referred to in Clause (c) and Clause (d) of sub-section (3) of this section."Ms. Gopal relying upon the words "not being an agreement in respect of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee" contended that union has no right to enter into settlement in respect of these categories. The argument is required to be stated only to be rejected. In the first place the settlement is not in respect of any of these categories but it pertains to the right to re-employment in terms of Section 25-G of the Act. Moreover there is nothing in the language of the proviso that the settlement in respect of the above matters will not bind the members of the union. 14.Ms. Gopal then contended that there was non-compliance with rule 58 of the Industrial Disputes (Central) Rules, 1957 as the office bearers of the union were not duly authorised by the union to enter into such settlement. She referred to the judgments of the Supreme Court in Workmen of M/s. Delhi Cloth General Mills Ltd. vs. The Management of M/s. Delhi Cloth and General Mills Ltd. 1970 LIC 1407 and Brooke Bond India Ltd. vs. Workmen 1981 II LLJ 184. The above contention was not raised before the trial court or before the learned single Judge. It is impermissible to raise such a contention at this belated stage. In fact the Tribunal has recorded a finding that there was compliance with the rules and the copies of the settlement were sent to the Commissioner of Labour, Conciliation Officer, Secretary of Industries, Energy and Labour Department of the Central Government. 15.Lastly Ms. Gopal challenged the settlement by taking recourse to section 25-J of the Act. This contention is equally without any substance and not tenable. In the present case the reference is in respect of the action of the management in not reemploying the workman and it does not relate to the retrenchment or layoff and, therefore, Chapter VB which contains this provision has no application. | 1[ds]In the present case the union is recognised union under the Code of Discipline in respect of the Dock Workers working in the appellant company. Therefore, the settlement entered into by the Union with the employer would be binding on itstherefore, negotiations take place which have to be encouraged, particularly between labour and employer in the interest of industrial peace andthere is always give and take. The settlement has to be taken as a package deal and when labour has gained in the matter of wages and if there is some reduction in the matter of dearness allowance so far as the award is concerned, it cannot be said that the settlement as a whole is unfair and unjust. It was further observed that it is not possible to scan the settlement in bits and pieces and held some parts good and acceptable and others bad. Unless it can be demonstrated that the objectionable portion is such that it completely outweights all the other advantages gained the Court will be slow to hold a settlement as unfair and unjust. The settlement has to be accepted or rejected as athe instant case it is not disputed that the settlement arrived by the union with the appellant company was not in the course of conciliation proceedings. Therefore, it would be binding on the parties to the agreement namely the appellant company on the one hand and the union representing the respondent workman who was its member. In the circumstances, the respondent workman also would be ordinarily bound by the settlement entered into by his representative union with the company unless it is shown that the said settlement was ex facie unfair, unjust or malafide. No such case was even alleged much less made out by the respondent workman either before the Tribunal or before the learned single Judge. It is interesting to note that before the learned single Judge the only argument put forward on behalf of the respondent workman was that, he was not a party to the settlement and his consent was not taken by the union and, therefore, it was not binding to him. Once it is kept in view that the industrial dispute was raised by the union on behalf of the retrenched workmen including respondent workman, and it was an industrial dispute covered by section 2(k) it cannot be held that the settlement which was entered into under section 2(p) read with section 18(1) of the Act is not binding on the individualShobha Gopal, however, drew our attention to the proviso to section 18(1) (Bombay Amendment) which reads asthat where there is a recognised union for any undertaking under any law for the time being in force, then such agreement not being an agreement in respect of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee shall be arrived at between the employer and the recognised union only and such agreement shall be binding on all persons referred to in Clause (c) and Clause (d) of(3) of this section."Ms. Gopal relying upon the words "not being an agreement in respect of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee" contended that union has no right to enter into settlement in respect of these categories. The argument is required to be stated only to be rejected. In the first place the settlement is not in respect of any of these categories but it pertains to the right toin terms of SectionGopal then contended that there waswith rule 58 of the Industrial Disputes (Central) Rules, 1957 as the office bearers of the union were not duly authorised by the union to enter into such settlement. She referred to the judgments of the Supreme Court in Workmen of M/s. Delhi Cloth General Mills Ltd. vs. The Management of M/s. Delhi Cloth and General Mills Ltd. 1970 LIC 1407 and Brooke Bond India Ltd. vs. Workmen 1981 II LLJ 184. The above contention was not raised before the trial court or before the learned single Judge. It is impermissible to raise such a contention at this belated stage. In fact the Tribunal has recorded a finding that there was compliance with the rules and the copies of the settlement were sent to the Commissioner of Labour, Conciliation Officer, Secretary of Industries, Energy and Labour Department of the CentralMs. Gopal challenged the settlement by taking recourse to sectionof the Act. This contention is equally without any substance and not tenable. In the present case the reference is in respect of the action of the management in not reemploying the workman and it does not relate to the retrenchment or layoff and, therefore, Chapter VB which contains this provision has no application. | 1 | 3,745 | 873 | ### 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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towards resolving the industrial dispute which may be lingering between the employers and their workmen represented by their unions but even if at that stage such settlement does not take place and the industrial dispute gets referred for adjudication, even pending such disputes, the parties can arrive at amicable settlement which may be binding the parties to the settlement unlike settlement arrived at during conciliation proceedings which may be binding not only on the parties to the settlement but even to the entire labour force working in the concerned organisation even though they may not be members of the union which might have entered into settlement during conciliation proceedings". 10.In the case of Balmer Lawrie Workers Union and Anr. vs. Balmer Lawrie & Co.Ltd. and Ors. 1985 I CLR 103, clause 17 of the settlement entered into between the management and the recognised union came to be challenged and as per the said clause the company was to collect, from each workman, an amount equivalent to 15 per cent of the gross arrears payable to each employee under the settlement as contribution to the union fund and it was, in turn, to be paid to the union within three days of the payment of arrears. It was inter alia contended by the petitioner union that the said clause was in breach of the provisions of the Payment of Wages Act and while rejecting the challenge the Supreme Court observed: "It is well known that no deduction could be from the wages and salary payable to a workman governed by the Payment of Wages Act unless authorised by the Act. A settlement arrived at on consent of parties can however permit a deduction as it is the outcome of understanding between the parties even though such deduction may be not authorised or legally permissible under the Payment of Wages Act."11.In the instant case it is not disputed that the settlement arrived by the union with the appellant company was not in the course of conciliation proceedings. Therefore, it would be binding on the parties to the agreement namely the appellant company on the one hand and the union representing the respondent workman who was its member. In the circumstances, the respondent workman also would be ordinarily bound by the settlement entered into by his representative union with the company unless it is shown that the said settlement was ex facie unfair, unjust or malafide. No such case was even alleged much less made out by the respondent workman either before the Tribunal or before the learned single Judge. It is interesting to note that before the learned single Judge the only argument put forward on behalf of the respondent workman was that, he was not a party to the settlement and his consent was not taken by the union and, therefore, it was not binding to him. Once it is kept in view that the industrial dispute was raised by the union on behalf of the retrenched workmen including respondent workman, and it was an industrial dispute covered by section 2(k) it cannot be held that the settlement which was entered into under section 2(p) read with section 18(1) of the Act is not binding on the individual workman. 12.In the light of the aforesaid discussion it is not possible to sustain the finding of the learned single Judge that the settlement was not binding on the respondent workman on the ground that the workman was not a signatory to the settlement. 13.Ms. Shobha Gopal, however, drew our attention to the proviso to section 18(1) (Bombay Amendment) which reads as follows: "Provided that where there is a recognised union for any undertaking under any law for the time being in force, then such agreement not being an agreement in respect of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee shall be arrived at between the employer and the recognised union only and such agreement shall be binding on all persons referred to in Clause (c) and Clause (d) of sub-section (3) of this section."Ms. Gopal relying upon the words "not being an agreement in respect of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee" contended that union has no right to enter into settlement in respect of these categories. The argument is required to be stated only to be rejected. In the first place the settlement is not in respect of any of these categories but it pertains to the right to re-employment in terms of Section 25-G of the Act. Moreover there is nothing in the language of the proviso that the settlement in respect of the above matters will not bind the members of the union. 14.Ms. Gopal then contended that there was non-compliance with rule 58 of the Industrial Disputes (Central) Rules, 1957 as the office bearers of the union were not duly authorised by the union to enter into such settlement. She referred to the judgments of the Supreme Court in Workmen of M/s. Delhi Cloth General Mills Ltd. vs. The Management of M/s. Delhi Cloth and General Mills Ltd. 1970 LIC 1407 and Brooke Bond India Ltd. vs. Workmen 1981 II LLJ 184. The above contention was not raised before the trial court or before the learned single Judge. It is impermissible to raise such a contention at this belated stage. In fact the Tribunal has recorded a finding that there was compliance with the rules and the copies of the settlement were sent to the Commissioner of Labour, Conciliation Officer, Secretary of Industries, Energy and Labour Department of the Central Government. 15.Lastly Ms. Gopal challenged the settlement by taking recourse to section 25-J of the Act. This contention is equally without any substance and not tenable. In the present case the reference is in respect of the action of the management in not reemploying the workman and it does not relate to the retrenchment or layoff and, therefore, Chapter VB which contains this provision has no application.
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1
### Explanation:
In the present case the union is recognised union under the Code of Discipline in respect of the Dock Workers working in the appellant company. Therefore, the settlement entered into by the Union with the employer would be binding on itstherefore, negotiations take place which have to be encouraged, particularly between labour and employer in the interest of industrial peace andthere is always give and take. The settlement has to be taken as a package deal and when labour has gained in the matter of wages and if there is some reduction in the matter of dearness allowance so far as the award is concerned, it cannot be said that the settlement as a whole is unfair and unjust. It was further observed that it is not possible to scan the settlement in bits and pieces and held some parts good and acceptable and others bad. Unless it can be demonstrated that the objectionable portion is such that it completely outweights all the other advantages gained the Court will be slow to hold a settlement as unfair and unjust. The settlement has to be accepted or rejected as athe instant case it is not disputed that the settlement arrived by the union with the appellant company was not in the course of conciliation proceedings. Therefore, it would be binding on the parties to the agreement namely the appellant company on the one hand and the union representing the respondent workman who was its member. In the circumstances, the respondent workman also would be ordinarily bound by the settlement entered into by his representative union with the company unless it is shown that the said settlement was ex facie unfair, unjust or malafide. No such case was even alleged much less made out by the respondent workman either before the Tribunal or before the learned single Judge. It is interesting to note that before the learned single Judge the only argument put forward on behalf of the respondent workman was that, he was not a party to the settlement and his consent was not taken by the union and, therefore, it was not binding to him. Once it is kept in view that the industrial dispute was raised by the union on behalf of the retrenched workmen including respondent workman, and it was an industrial dispute covered by section 2(k) it cannot be held that the settlement which was entered into under section 2(p) read with section 18(1) of the Act is not binding on the individualShobha Gopal, however, drew our attention to the proviso to section 18(1) (Bombay Amendment) which reads asthat where there is a recognised union for any undertaking under any law for the time being in force, then such agreement not being an agreement in respect of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee shall be arrived at between the employer and the recognised union only and such agreement shall be binding on all persons referred to in Clause (c) and Clause (d) of(3) of this section."Ms. Gopal relying upon the words "not being an agreement in respect of dismissal, discharge, removal, retrenchment, termination of service, or suspension of an employee" contended that union has no right to enter into settlement in respect of these categories. The argument is required to be stated only to be rejected. In the first place the settlement is not in respect of any of these categories but it pertains to the right toin terms of SectionGopal then contended that there waswith rule 58 of the Industrial Disputes (Central) Rules, 1957 as the office bearers of the union were not duly authorised by the union to enter into such settlement. She referred to the judgments of the Supreme Court in Workmen of M/s. Delhi Cloth General Mills Ltd. vs. The Management of M/s. Delhi Cloth and General Mills Ltd. 1970 LIC 1407 and Brooke Bond India Ltd. vs. Workmen 1981 II LLJ 184. The above contention was not raised before the trial court or before the learned single Judge. It is impermissible to raise such a contention at this belated stage. In fact the Tribunal has recorded a finding that there was compliance with the rules and the copies of the settlement were sent to the Commissioner of Labour, Conciliation Officer, Secretary of Industries, Energy and Labour Department of the CentralMs. Gopal challenged the settlement by taking recourse to sectionof the Act. This contention is equally without any substance and not tenable. In the present case the reference is in respect of the action of the management in not reemploying the workman and it does not relate to the retrenchment or layoff and, therefore, Chapter VB which contains this provision has no application.
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Dr. K.C. Nambiar Vs. Rent Controller, Madras and Ors | (ii) and (iii) of sub-s. (3) (b) which go to prove that the expression "cost of construction" was not intended to mean the market value. The expression "cost of building" includes not only the expenses incurred for constructing the building but also the value of advantages which the site of the building offers, such as, accessibility to markets, nearness to a railway station, special amenities, and features of architectural interest. If the expression "cost of construction" is equated with the "market value", it would necessarily include the special advantages of its situation, amenities and its architectural features. But the Legislature has provided for including in the cost of the building apart from the cost of construction, the value of allowances for favourable situation, amenities and architectural features. That is a ground for holding that the value of allowance is not included in the cost of building.7. Amenities such as air-conditioning, lifts, electric fans, tube-lights, number of electric points, fans, ventilators, electric pump for water, flush-outs, fixed wash-basins, staircases, out-houses, cattle-sheds, garden or vacant ground appurtenant to the building enjoyed by the tenant and usufructs of trees, if any, enjoyed by the tenant will also be included in the cost of building as allowances. But many of these amenities would be taken into account in determining the market value of the building. The learned Advocate-General appearing on behalf of the State of Madras was unable to explain why the Legislature in the determination of the cost of building for arriving at the fair rent, if the view expressed by the High Court is correct, enacted that these allowances should be included twice, once as part of component (i) and again as part of component (iii).8. The learned Trial Judge has rightly pointed out that in determining the cost of construction, if the contention of the State be accepted in determining the first component of the cost of building will be the cost of reproducing the building at a given time reduced by the depreciation computed on the life of the building a process which reverses the normal method of making allowances for depreciation. Again, if the meaning of the expression "cost of construction" were "market value" it would mean that the market value having regard to the market conditions of real property which may go on changing year after year. But the State has accepted by Rule 12 the cost of construction is a fixed quantity related to the date on which the Act was brought into force. Therefore by prescribing the rate at which the cost of construction is to be determined under R. 12, the expression "cost of construction" is neither the original cost, nor the value of the building at a given time during the life of the Act, but an artificial value related to the assumed cost of construction on the date on which the Act was enacted.9. The Advocate-General, however, submitted that in respect of old buildings it may not be possible to ascertain what the cost of construction of a particular building was. But that argument cannot support an interpretation which the plain words used by the statute do not, warrant. Counsel for the appellant pointed out, that P. W. D. rates in respect of different classes of buildings for many years are available, and it should not be difficult for the Controller, having regard to the P.W.D. rates which would form a fairly reliable basis for determining, what the cost of construction of a particular type of building was. The argument that the "cost of construction" of a building is to be such cost as may be prescribed, invites the answer that a provision which, without any guidance, leaves it to the executive authority to fix whatever that authority thinks is the cost of construction, is invalid on the ground of excessive delegation. If the Legislature has sought to confer authority upon the executive to fix the rates and to fix the rates and to call them cost of construction, the Legislature has abdicated its authority in favour of the executive which in law is not permissible. This, however, was not the argument which was advanced before the High Court, for it was the case of the State that the rates specified in the rules were rates which were actually prevailing in 1961 in respect of different classes of buildings.10. It was also urged that allowing depreciation at the rates prescribed in Schedule II to the Rules might unduly depreciate the value of the properties and the landlord may not get a fair return.But it has been a common feature of rent restriction legislation all over India that the landlord is not allowed the benefit of unearned increment on the value of his construction. That is why in practically every statute relating to rent restriction legislation rent is pegged down to either a fixed period or to standard rent which is generally related to the cost of construction originally incurred.11. We are accordingly unable to agree with the High Court that the Legislature intended by the use of the expressions "cost of construction" and "market value" used in cls. (i) and (ii) of sub-section (3) the same concept of determining the value of a building reproduced at the date when the Act came into force and reduced by depreciation at the prescribed rates.12. Some argument about the true meaning of Note (2) to Schedule II which provides for the standard rates of depreciation was raised before us. The language used in the Note, even as explained by the illustrations, is obscure.13. We are in this case not called upon to determine the meaning of that clause.If the expression "cost of construction" in sub-section (3) (b) (i) means the cost of construction of the building as originally created with such additions as may be required to be made for subsequent improvements, R. 12 which prescribes the rates at which the cost of construction is to be computed plainly goes beyond the terms of the Section. | 1[ds]4. By sub-s. (1) of Section 4, the Controller is invested with authority to fix fair rent of buildings in respect of which an application is made in accordance with the principles set out in sub-ss. (2) and (3) and such other principles as may be prescribed. Under sub-s. (3) fair rent of any non-residential building is to be computed at nine per cent of the gross return per annum on the total cost of such building and the total cost of the building is to consist of three components - (i) the cost of construction; (ii) the market value of the portion of the site on which the non-resident building is constructed; and (iii) such allowances not exceeding 25 per cent of the cost of construction as may be made for locality, features of architectural interest, accessibility to market, nearness of a railway station and other amenities as may be prescribed.The Legislature has used in sub-section (3) (b) (i) the expression "cost of construction" and in sub-s. (3) (b) (ii) "market value". It is difficult to accept that the Legislature has used two different expressions for providing that the market value of the building and market value of the site shall form components of the total cost of 9is, not infrequently great difference between the cost of an article and the value of an article. Cost of an article in terms of money is what the owner has expended to obtain it; the value of the article is ordinarily its market value in a market actual or hypothetical. It may be conceded that the expression "cost" is sometimes used as meaning the value of an article.But the expression "cost of construction" in sub-s. (3) (b) (i) for determining the first component when used in juxtaposition with the expression "market value" in sub-s. 3 (b) (ii) is, in our judgment, used to denote not the market value but the cost of the original construction. There are inherent indications in cls. (i), (ii) and (iii) of sub-s. (3) (b) which go to prove that the expression "cost of construction" was not intended to mean the market value. The expression "cost of building" includes not only the expenses incurred for constructing the building but also the value of advantages which the site of the building offers, such as, accessibility to markets, nearness to a railway station, special amenities, and features of architectural interest. If the expression "cost of construction" is equated with the "market value", it would necessarily include the special advantages of its situation, amenities and its architectural features. But the Legislature has provided for including in the cost of the building apart from the cost of construction, the value of allowances for favourable situation, amenities and architectural features. That is a ground for holding that the value of allowance is not included in the cost of building.7. Amenities such as air-conditioning, lifts, electric fans, tube-lights, number of electric points, fans, ventilators, electric pump for water, flush-outs, fixed wash-basins, staircases, out-houses, cattle-sheds, garden or vacant ground appurtenant to the building enjoyed by the tenant and usufructs of trees, if any, enjoyed by the tenant will also be included in the cost of building as allowances. But many of these amenities would be taken into account in determining the market value of thelearned Advocate-General appearing on behalf of the State of Madras was unable to explain why the Legislature in the determination of the cost of building for arriving at the fair rent, if the view expressed by the High Court is correct, enacted that these allowances should be included twice, once as part of component (i) and again as part of componentd Advocate-General appearing on behalf of the State of Madras was unable to explain why the Legislature in the determination of the cost of building for arriving at the fair rent, if the view expressed by the High Court is correct, enacted that these allowances should be included twice, once as part of component (i) and again as part of componentthat argument cannot support an interpretation which the plain words used by the statute do not, warrant.for the appellant pointed out, that P. W. D. rates in respect of different classes of buildings for many years are available, and it should not be difficult for the Controller, having regard to the P.W.D. rates which would form a fairly reliable basis for determining, what the cost of construction of a particular type of buildingargument that the "cost of construction" of a building is to be such cost as may be prescribed, invites the answer that a provision which, without any guidance, leaves it to the executive authority to fix whatever that authority thinks is the cost of construction, is invalid on the ground of excessiveit has been a common feature of rent restriction legislation all over India that the landlord is not allowed the benefit of unearned increment on the value of his construction. That is why in practically every statute relating to rent restriction legislation rent is pegged down to either a fixed period or to standard rent which is generally related to the cost of construction originally incurred.11. We are accordingly unable to agree with the High Court that the Legislature intended by the use of the expressions "cost of construction" and "market value" used in cls. (i) and (ii) of sub-section (3) the same concept of determining the value of a building reproduced at the date when the Act came into force and reduced by depreciation at the prescribed rates.12. Some argument about the true meaning of Note (2) to Schedule II which provides for the standard rates of depreciation was raised before us. The language used in the Note, even as explained by the illustrations, is obscure.13. We are in this case not called upon to determine the meaning of that clause.If the expression "cost of construction" in sub-section (3) (b) (i) means the cost of construction of the building as originally created with such additions as may be required to be made for subsequent improvements, R. 12 which prescribes the rates at which the cost of construction is to be computed plainly goes beyond the terms of the(iii).8. The learned Trial Judge has rightly pointed out that in determining the cost of construction, if the contention of the State be accepted in determining the first component of the cost of building will be the cost of reproducing the building at a given time reduced by the depreciation computed on the life of the building a process which reverses the normal method of making allowances for depreciation. Again, if the meaning of the expression "cost of construction" were "market value" it would mean that the market value having regard to the market conditions of real property which may go on changing year after year. But the State has accepted by Rule 12 the cost of construction is a fixed quantity related to the date on which the Act was brought into force. Therefore by prescribing the rate at which the cost of construction is to be determined under R. 12, the expression "cost of construction" is neither the original cost, nor the value of the building at a given time during the life of the Act, but an artificial value related to the assumed cost of construction on the date on which the Act wast that the "cost of construction" of a building is to be such cost as may be prescribed, invites the answer that a provision which, without any guidance, leaves it to the executive authority to fix whatever that authority thinks is the cost of construction, is invalid on the ground of excessivedelegation. If the Legislature has sought to confer authority upon the executive to fix the rates and to fix the rates and to call them cost of construction, the Legislature has abdicated its authority in favour of the executive which in law is not permissible. This, however, was not the argument which was advanced before the High Court, for it was the case of the State that the rates specified in the rules were rates which were actually prevailing in 1961 in respect of different classes of buildings. | 1 | 3,444 | 1,567 | ### 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:
(ii) and (iii) of sub-s. (3) (b) which go to prove that the expression "cost of construction" was not intended to mean the market value. The expression "cost of building" includes not only the expenses incurred for constructing the building but also the value of advantages which the site of the building offers, such as, accessibility to markets, nearness to a railway station, special amenities, and features of architectural interest. If the expression "cost of construction" is equated with the "market value", it would necessarily include the special advantages of its situation, amenities and its architectural features. But the Legislature has provided for including in the cost of the building apart from the cost of construction, the value of allowances for favourable situation, amenities and architectural features. That is a ground for holding that the value of allowance is not included in the cost of building.7. Amenities such as air-conditioning, lifts, electric fans, tube-lights, number of electric points, fans, ventilators, electric pump for water, flush-outs, fixed wash-basins, staircases, out-houses, cattle-sheds, garden or vacant ground appurtenant to the building enjoyed by the tenant and usufructs of trees, if any, enjoyed by the tenant will also be included in the cost of building as allowances. But many of these amenities would be taken into account in determining the market value of the building. The learned Advocate-General appearing on behalf of the State of Madras was unable to explain why the Legislature in the determination of the cost of building for arriving at the fair rent, if the view expressed by the High Court is correct, enacted that these allowances should be included twice, once as part of component (i) and again as part of component (iii).8. The learned Trial Judge has rightly pointed out that in determining the cost of construction, if the contention of the State be accepted in determining the first component of the cost of building will be the cost of reproducing the building at a given time reduced by the depreciation computed on the life of the building a process which reverses the normal method of making allowances for depreciation. Again, if the meaning of the expression "cost of construction" were "market value" it would mean that the market value having regard to the market conditions of real property which may go on changing year after year. But the State has accepted by Rule 12 the cost of construction is a fixed quantity related to the date on which the Act was brought into force. Therefore by prescribing the rate at which the cost of construction is to be determined under R. 12, the expression "cost of construction" is neither the original cost, nor the value of the building at a given time during the life of the Act, but an artificial value related to the assumed cost of construction on the date on which the Act was enacted.9. The Advocate-General, however, submitted that in respect of old buildings it may not be possible to ascertain what the cost of construction of a particular building was. But that argument cannot support an interpretation which the plain words used by the statute do not, warrant. Counsel for the appellant pointed out, that P. W. D. rates in respect of different classes of buildings for many years are available, and it should not be difficult for the Controller, having regard to the P.W.D. rates which would form a fairly reliable basis for determining, what the cost of construction of a particular type of building was. The argument that the "cost of construction" of a building is to be such cost as may be prescribed, invites the answer that a provision which, without any guidance, leaves it to the executive authority to fix whatever that authority thinks is the cost of construction, is invalid on the ground of excessive delegation. If the Legislature has sought to confer authority upon the executive to fix the rates and to fix the rates and to call them cost of construction, the Legislature has abdicated its authority in favour of the executive which in law is not permissible. This, however, was not the argument which was advanced before the High Court, for it was the case of the State that the rates specified in the rules were rates which were actually prevailing in 1961 in respect of different classes of buildings.10. It was also urged that allowing depreciation at the rates prescribed in Schedule II to the Rules might unduly depreciate the value of the properties and the landlord may not get a fair return.But it has been a common feature of rent restriction legislation all over India that the landlord is not allowed the benefit of unearned increment on the value of his construction. That is why in practically every statute relating to rent restriction legislation rent is pegged down to either a fixed period or to standard rent which is generally related to the cost of construction originally incurred.11. We are accordingly unable to agree with the High Court that the Legislature intended by the use of the expressions "cost of construction" and "market value" used in cls. (i) and (ii) of sub-section (3) the same concept of determining the value of a building reproduced at the date when the Act came into force and reduced by depreciation at the prescribed rates.12. Some argument about the true meaning of Note (2) to Schedule II which provides for the standard rates of depreciation was raised before us. The language used in the Note, even as explained by the illustrations, is obscure.13. We are in this case not called upon to determine the meaning of that clause.If the expression "cost of construction" in sub-section (3) (b) (i) means the cost of construction of the building as originally created with such additions as may be required to be made for subsequent improvements, R. 12 which prescribes the rates at which the cost of construction is to be computed plainly goes beyond the terms of the Section.
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1
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incurred for constructing the building but also the value of advantages which the site of the building offers, such as, accessibility to markets, nearness to a railway station, special amenities, and features of architectural interest. If the expression "cost of construction" is equated with the "market value", it would necessarily include the special advantages of its situation, amenities and its architectural features. But the Legislature has provided for including in the cost of the building apart from the cost of construction, the value of allowances for favourable situation, amenities and architectural features. That is a ground for holding that the value of allowance is not included in the cost of building.7. Amenities such as air-conditioning, lifts, electric fans, tube-lights, number of electric points, fans, ventilators, electric pump for water, flush-outs, fixed wash-basins, staircases, out-houses, cattle-sheds, garden or vacant ground appurtenant to the building enjoyed by the tenant and usufructs of trees, if any, enjoyed by the tenant will also be included in the cost of building as allowances. But many of these amenities would be taken into account in determining the market value of thelearned Advocate-General appearing on behalf of the State of Madras was unable to explain why the Legislature in the determination of the cost of building for arriving at the fair rent, if the view expressed by the High Court is correct, enacted that these allowances should be included twice, once as part of component (i) and again as part of componentd Advocate-General appearing on behalf of the State of Madras was unable to explain why the Legislature in the determination of the cost of building for arriving at the fair rent, if the view expressed by the High Court is correct, enacted that these allowances should be included twice, once as part of component (i) and again as part of componentthat argument cannot support an interpretation which the plain words used by the statute do not, warrant.for the appellant pointed out, that P. W. D. rates in respect of different classes of buildings for many years are available, and it should not be difficult for the Controller, having regard to the P.W.D. rates which would form a fairly reliable basis for determining, what the cost of construction of a particular type of buildingargument that the "cost of construction" of a building is to be such cost as may be prescribed, invites the answer that a provision which, without any guidance, leaves it to the executive authority to fix whatever that authority thinks is the cost of construction, is invalid on the ground of excessiveit has been a common feature of rent restriction legislation all over India that the landlord is not allowed the benefit of unearned increment on the value of his construction. That is why in practically every statute relating to rent restriction legislation rent is pegged down to either a fixed period or to standard rent which is generally related to the cost of construction originally incurred.11. We are accordingly unable to agree with the High Court that the Legislature intended by the use of the expressions "cost of construction" and "market value" used in cls. (i) and (ii) of sub-section (3) the same concept of determining the value of a building reproduced at the date when the Act came into force and reduced by depreciation at the prescribed rates.12. Some argument about the true meaning of Note (2) to Schedule II which provides for the standard rates of depreciation was raised before us. The language used in the Note, even as explained by the illustrations, is obscure.13. We are in this case not called upon to determine the meaning of that clause.If the expression "cost of construction" in sub-section (3) (b) (i) means the cost of construction of the building as originally created with such additions as may be required to be made for subsequent improvements, R. 12 which prescribes the rates at which the cost of construction is to be computed plainly goes beyond the terms of the(iii).8. The learned Trial Judge has rightly pointed out that in determining the cost of construction, if the contention of the State be accepted in determining the first component of the cost of building will be the cost of reproducing the building at a given time reduced by the depreciation computed on the life of the building a process which reverses the normal method of making allowances for depreciation. Again, if the meaning of the expression "cost of construction" were "market value" it would mean that the market value having regard to the market conditions of real property which may go on changing year after year. But the State has accepted by Rule 12 the cost of construction is a fixed quantity related to the date on which the Act was brought into force. Therefore by prescribing the rate at which the cost of construction is to be determined under R. 12, the expression "cost of construction" is neither the original cost, nor the value of the building at a given time during the life of the Act, but an artificial value related to the assumed cost of construction on the date on which the Act wast that the "cost of construction" of a building is to be such cost as may be prescribed, invites the answer that a provision which, without any guidance, leaves it to the executive authority to fix whatever that authority thinks is the cost of construction, is invalid on the ground of excessivedelegation. If the Legislature has sought to confer authority upon the executive to fix the rates and to fix the rates and to call them cost of construction, the Legislature has abdicated its authority in favour of the executive which in law is not permissible. This, however, was not the argument which was advanced before the High Court, for it was the case of the State that the rates specified in the rules were rates which were actually prevailing in 1961 in respect of different classes of buildings.
|
Dr.V.P.Malik Vs. Union Of India | between the functional grade and non-functional grade and having also recommended for promotion to the grade of Rs. 4,500 - 5,700 on the completion of 4 years of service for which period petitioners had served by 31.10.1990, the giving of the grade w.e.f 1.12.1991 has injuriously affected the petitioners both in terms of money and service prospect. This being for no good reason, the decision to make available the aforesaid pay from 1.12.1991 has to be regarded as arbitrary. 3. Shri Goswami, learned counsel appearing for the Ministry of Health, contends that as the recommendations of the Tikoo Committee had even to be considered by the Union Cabinet, the time lag has to be regarded as justified and the benefit having been made available from the first day of the next month in which the Office Memorandum spelling out the decisions of the Government was issued, the petitioners aforesaid two grievances have no merit. It has also been submitted that the petitioners grievance qua their seniority cannot be heard in this petition inasmuch as those who would be adversely affected, if the case of the petitioners were to be accepted, are not before the Court. 4. There is enough merit in the stand taken by the Ministry of Health inasmuch as what has been contained in the Tikoo Committee Report being recommendatory in nature, a decision was required to be taken which of the recommendations could be accepted and which not. As the final decision was taken within about a year of the submission of report, we would not regard the time lag unjustified, because the recommendations being many in number involving huge financial implications and needing sorting out of some service problems, the period of about one year taken to finally come to a decision has to be regarded as reasonable. 5. As to whether the fixation of the date (1.12.1991) can be regarded as arbitrary, it may be stated that fixation of a cut-off date can be so regarded by court if the same be one about which it can be said that it has been ``picked out from a hat, as stated by this Court in D.R. Nim v. Union of India, 1967(2) SCR 325. A Bench of this Court to which one of us (Hansaria, J.) was a party examine the question of fixation of cut-off date on the touchstone of Article 14 in Union of India v. Sudhir Kumar Jaiswal, 1994(3) SCT 322(SC) : 1994(4) SCC 212. In that case the case of Dr. Nim (supra) was noted in para 4, followed by reference to other important decisions on this aspect in paras 5 to 7. We do not propose to reiterate what was stated in Jaiswals case. It would be enough to point out that the observation of Holmes, J in Louisville Gas and Electric Company v. Clell Coleman, 277 US 32, that a choice of cut-off date can be interfered with if the fixation be ``very wide off any reasonable mark was cited with approval by this Court in Union of India v. Parmeswaran Match Works, 1975(1) SCC 305. It was further added that a choice of date cannot be dubbed as arbitrary unless it is shown to be capricious or whimsical in the circumstances. 6. In the present case, the date (1.12.1991) having been fixed because of the issuance of the Office Memorandum containing the decisions of the Government on the Tikoo Committee recommendations on 14.11.1991, the cut-off date of 1.12.1991 is far from arbitrary and whimsical; it is really reasonable. It has not been picked out from a hat, but is founded on logic.7. In the additional written submissions filed on behalf of the petitioners on November 29, 1995, another grievance made is that the fixing of cut-off date as 1.12.1991 has resulted in discrimination between officers of the same grade in that those juniors to the petitioners who were considered for promotion after 1.12.1991 got it on completing 8 years of combined service as Assistant Professor and Associate Professor, while the seniors who got promoted to the ``Non-Functional Selection Grade and were re-designated as Professors with effect from 1.12.1991 are being treated differently and in most cases would get promotion to the post of Professor after serving much longer in the feeder grade. This result is not really likely to follow, because as submitted in the written submissions on behalf of the respondents, promotion as a matter of rule can be effective only from a prospective date. This apart, those of the juniors who were promoted after the issuance of the Office Memorandum of November 14, 1991 cannot steal a march over the earlier promotees because of the order passed in IA No. 4 of 1993 on 17.10.1994 stating that any promotion made during the pendency of the writ petition in the teaching sub-cadre will abide by the result of the petitioners. It also deserves to be pointed out that the recommendation of the Tikoo Committee for placing of the teaching specialists in the grade of Rs. 4,500 - 5,700 after 4 years of the granting of the scale of Rs. 3,700-5,000, is more beneficial than the one which was part of the Memorandum of Settlement, according to which, Associate Professor in the scale of Rs. 3,700 - 5,000 was to be placed in the scale of Rs. 4,500 - 5,700 on completion of 6 years of regular service as Associate Professor or 8 years of combined services as Assistant Professor and Associate Professor. It may be stated that the Tikoo Committee also recommended promotion to the grade of Rs. 4,500 - 5,700 on completion of 8 years of service as specialists. It has been clarified in the written submissions of the respondents that service as Lecturer cannot be taken in account in this regard.8. The discrimination about which mention has been made in the additional written submissions thus seems to be more imaginary than real. In any case, the aforesaid order of 17.10.1994 adequately takes care of the apprehension. | 0[ds]4. There is enough merit in the stand taken by the Ministry of Health inasmuch as what has been contained in the Tikoo Committee Report being recommendatory in nature, a decision was required to be taken which of the recommendations could be accepted and which not. As the final decision was taken within about a year of the submission of report, we would not regard the time lag unjustified, because the recommendations being many in number involving huge financial implications and needing sorting out of some service problems, the period of about one year taken to finally come to a decision has to be regarded as reasonable.In the present case, the date (1.12.1991) having been fixed because of the issuance of the Office Memorandum containing the decisions of the Government on the Tikoo Committee recommendations on 14.11.1991, the cut-off date of 1.12.1991 is far from arbitrary and whimsical; it is really reasonable. It has not been picked out from a hat, but is founded on logic.7. In the additional written submissions filed on behalf of the petitioners on November 29, 1995, another grievance made is that the fixing of cut-off date as 1.12.1991 has resulted in discrimination between officers of the same grade in that those juniors to the petitioners who were considered for promotion after 1.12.1991 got it on completing 8 years of combined service as Assistant Professor and Associate Professor, while the seniors who got promoted to the ``Non-Functional Selection Grade and were re-designated as Professors with effect from 1.12.1991 are being treated differently and in most cases would get promotion to the post of Professor after serving much longer in the feeder grade. This result is not really likely to follow, because as submitted in the written submissions on behalf of the respondents, promotion as a matter of rule can be effective only from a prospective date. This apart, those of the juniors who were promoted after the issuance of the Office Memorandum of November 14, 1991 cannot steal a march over the earlier promotees because of the order passed in IA No. 4 of 1993 on 17.10.1994 stating that any promotion made during the pendency of the writ petition in the teaching sub-cadre will abide by the result of the petitioners. It also deserves to be pointed out that the recommendation of the Tikoo Committee for placing of the teaching specialists in the grade of Rs. 4,500 - 5,700 after 4 years of the granting of the scale of Rs. 3,700-5,000, is more beneficial than the one which was part of the Memorandum of Settlement, according to which, Associate Professor in the scale of Rs. 3,700 - 5,000 was to be placed in the scale of Rs. 4,500 - 5,700 on completion of 6 years of regular service as Associate Professor or 8 years of combined services as Assistant Professor and Associate Professor. It may be stated that the Tikoo Committee also recommended promotion to the grade of Rs. 4,500 - 5,700 on completion of 8 years of service as specialists. It has been clarified in the written submissions of the respondents that service as Lecturer cannot be taken in account in this regard.8. The discrimination about which mention has been made in the additional written submissions thus seems to be more imaginary than real. In any case, the aforesaid order of 17.10.1994 adequately takes care of the apprehension. | 0 | 1,479 | 609 | ### 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:
between the functional grade and non-functional grade and having also recommended for promotion to the grade of Rs. 4,500 - 5,700 on the completion of 4 years of service for which period petitioners had served by 31.10.1990, the giving of the grade w.e.f 1.12.1991 has injuriously affected the petitioners both in terms of money and service prospect. This being for no good reason, the decision to make available the aforesaid pay from 1.12.1991 has to be regarded as arbitrary. 3. Shri Goswami, learned counsel appearing for the Ministry of Health, contends that as the recommendations of the Tikoo Committee had even to be considered by the Union Cabinet, the time lag has to be regarded as justified and the benefit having been made available from the first day of the next month in which the Office Memorandum spelling out the decisions of the Government was issued, the petitioners aforesaid two grievances have no merit. It has also been submitted that the petitioners grievance qua their seniority cannot be heard in this petition inasmuch as those who would be adversely affected, if the case of the petitioners were to be accepted, are not before the Court. 4. There is enough merit in the stand taken by the Ministry of Health inasmuch as what has been contained in the Tikoo Committee Report being recommendatory in nature, a decision was required to be taken which of the recommendations could be accepted and which not. As the final decision was taken within about a year of the submission of report, we would not regard the time lag unjustified, because the recommendations being many in number involving huge financial implications and needing sorting out of some service problems, the period of about one year taken to finally come to a decision has to be regarded as reasonable. 5. As to whether the fixation of the date (1.12.1991) can be regarded as arbitrary, it may be stated that fixation of a cut-off date can be so regarded by court if the same be one about which it can be said that it has been ``picked out from a hat, as stated by this Court in D.R. Nim v. Union of India, 1967(2) SCR 325. A Bench of this Court to which one of us (Hansaria, J.) was a party examine the question of fixation of cut-off date on the touchstone of Article 14 in Union of India v. Sudhir Kumar Jaiswal, 1994(3) SCT 322(SC) : 1994(4) SCC 212. In that case the case of Dr. Nim (supra) was noted in para 4, followed by reference to other important decisions on this aspect in paras 5 to 7. We do not propose to reiterate what was stated in Jaiswals case. It would be enough to point out that the observation of Holmes, J in Louisville Gas and Electric Company v. Clell Coleman, 277 US 32, that a choice of cut-off date can be interfered with if the fixation be ``very wide off any reasonable mark was cited with approval by this Court in Union of India v. Parmeswaran Match Works, 1975(1) SCC 305. It was further added that a choice of date cannot be dubbed as arbitrary unless it is shown to be capricious or whimsical in the circumstances. 6. In the present case, the date (1.12.1991) having been fixed because of the issuance of the Office Memorandum containing the decisions of the Government on the Tikoo Committee recommendations on 14.11.1991, the cut-off date of 1.12.1991 is far from arbitrary and whimsical; it is really reasonable. It has not been picked out from a hat, but is founded on logic.7. In the additional written submissions filed on behalf of the petitioners on November 29, 1995, another grievance made is that the fixing of cut-off date as 1.12.1991 has resulted in discrimination between officers of the same grade in that those juniors to the petitioners who were considered for promotion after 1.12.1991 got it on completing 8 years of combined service as Assistant Professor and Associate Professor, while the seniors who got promoted to the ``Non-Functional Selection Grade and were re-designated as Professors with effect from 1.12.1991 are being treated differently and in most cases would get promotion to the post of Professor after serving much longer in the feeder grade. This result is not really likely to follow, because as submitted in the written submissions on behalf of the respondents, promotion as a matter of rule can be effective only from a prospective date. This apart, those of the juniors who were promoted after the issuance of the Office Memorandum of November 14, 1991 cannot steal a march over the earlier promotees because of the order passed in IA No. 4 of 1993 on 17.10.1994 stating that any promotion made during the pendency of the writ petition in the teaching sub-cadre will abide by the result of the petitioners. It also deserves to be pointed out that the recommendation of the Tikoo Committee for placing of the teaching specialists in the grade of Rs. 4,500 - 5,700 after 4 years of the granting of the scale of Rs. 3,700-5,000, is more beneficial than the one which was part of the Memorandum of Settlement, according to which, Associate Professor in the scale of Rs. 3,700 - 5,000 was to be placed in the scale of Rs. 4,500 - 5,700 on completion of 6 years of regular service as Associate Professor or 8 years of combined services as Assistant Professor and Associate Professor. It may be stated that the Tikoo Committee also recommended promotion to the grade of Rs. 4,500 - 5,700 on completion of 8 years of service as specialists. It has been clarified in the written submissions of the respondents that service as Lecturer cannot be taken in account in this regard.8. The discrimination about which mention has been made in the additional written submissions thus seems to be more imaginary than real. In any case, the aforesaid order of 17.10.1994 adequately takes care of the apprehension.
### Response:
0
### Explanation:
4. There is enough merit in the stand taken by the Ministry of Health inasmuch as what has been contained in the Tikoo Committee Report being recommendatory in nature, a decision was required to be taken which of the recommendations could be accepted and which not. As the final decision was taken within about a year of the submission of report, we would not regard the time lag unjustified, because the recommendations being many in number involving huge financial implications and needing sorting out of some service problems, the period of about one year taken to finally come to a decision has to be regarded as reasonable.In the present case, the date (1.12.1991) having been fixed because of the issuance of the Office Memorandum containing the decisions of the Government on the Tikoo Committee recommendations on 14.11.1991, the cut-off date of 1.12.1991 is far from arbitrary and whimsical; it is really reasonable. It has not been picked out from a hat, but is founded on logic.7. In the additional written submissions filed on behalf of the petitioners on November 29, 1995, another grievance made is that the fixing of cut-off date as 1.12.1991 has resulted in discrimination between officers of the same grade in that those juniors to the petitioners who were considered for promotion after 1.12.1991 got it on completing 8 years of combined service as Assistant Professor and Associate Professor, while the seniors who got promoted to the ``Non-Functional Selection Grade and were re-designated as Professors with effect from 1.12.1991 are being treated differently and in most cases would get promotion to the post of Professor after serving much longer in the feeder grade. This result is not really likely to follow, because as submitted in the written submissions on behalf of the respondents, promotion as a matter of rule can be effective only from a prospective date. This apart, those of the juniors who were promoted after the issuance of the Office Memorandum of November 14, 1991 cannot steal a march over the earlier promotees because of the order passed in IA No. 4 of 1993 on 17.10.1994 stating that any promotion made during the pendency of the writ petition in the teaching sub-cadre will abide by the result of the petitioners. It also deserves to be pointed out that the recommendation of the Tikoo Committee for placing of the teaching specialists in the grade of Rs. 4,500 - 5,700 after 4 years of the granting of the scale of Rs. 3,700-5,000, is more beneficial than the one which was part of the Memorandum of Settlement, according to which, Associate Professor in the scale of Rs. 3,700 - 5,000 was to be placed in the scale of Rs. 4,500 - 5,700 on completion of 6 years of regular service as Associate Professor or 8 years of combined services as Assistant Professor and Associate Professor. It may be stated that the Tikoo Committee also recommended promotion to the grade of Rs. 4,500 - 5,700 on completion of 8 years of service as specialists. It has been clarified in the written submissions of the respondents that service as Lecturer cannot be taken in account in this regard.8. The discrimination about which mention has been made in the additional written submissions thus seems to be more imaginary than real. In any case, the aforesaid order of 17.10.1994 adequately takes care of the apprehension.
|
Bhuwalka Steel Indus. Ltd Vs. Bombay Iron & Steel Labour Bd. | Timber Merchants Association Ltd., specifying that the direct labourers of the employer doing loading/unloading work would not be covered by the said Act. Though these two letters were never procured, they were produced before us. Further, a reference is made to the letter of Mathadi Board (Bombay Iron and Steel Labour Board) dated 17.11.1983, wherein the Mathadi Board understood and applied the Act only to that special class of workers doing loading and unloading operations in scheduled employments, who were in the regular employments of an employer and, therefore, were not protected by other applicable labour legislations. It was also urged that only after the impugned judgment was passed, the Mathadi Boards have started asking the employers to register them under the Act even if they are engaging regular full time workers. It was urged that in Irkar Sahu’s & Anr. v. Bombay Port Trust (cited supra), the Mathadi Board had taken such a position and they could not now turn back from their stance. From this, the learned Senior Counsel urged that since the State Government itself understood the provision in a particular manner, such understanding should be honoured by the Courts. 40. The argument is clearly erroneous for the simple reason that it is not the task of the State Government, more particularly, the Executive Branch to interpret the law; that is the task of the Courts. Even if the State Government understood the Act in a particular manner, that cannot be a true and correct interpretation unless it is so held by the Courts. Therefore, how the State Government officials understood the Act, is really irrelevant. The learned Senior Counsel, in his address, relied on the decision in Godawat Pan Masala Products I.P. Ltd. & Anr. v. Union of India & Ors., IV (2004) SLT 908=2004 (7) SCC 68 , and more particularly, para 32 therein. There, Hon’ble Srikrishna, J. accepted the meaning of the concerned provision as it was understood by the State authorities. However, the learned Judge was careful enough to say that: “While this may not be really conclusive, it certainly indicates the manner of the State authority viewing its power and the Rules under which it was exercising the power. The Court can certainly take into account this situation on the doctrine of contemporanea expositio.” Therefore, this cannot be viewed to be an absolute doctrine. There are number of authorities, which speak about the powers of the Court, vis-a-vis, this doctrine. It has been held in Clyde Navigation Trustees v. Laird, 1883 (8) AC 658; Assheton Smith v. Owen, 1906 (1) Ch.D 179; Goldsmiths’ Co. v. Wyatt, 1907 (1) KB 95; Senior Electric Inspector v. Laxminarayan Chopra, AIR 1962 SC 159 ; Raja Ram Jaiswal v. State of Bihar, AIR 1964 SC 828 ; J.K. Cotton Spinning & Weaving Mills Ltd. v. Union of India, AIR 1988 SC 191 ; Doypack Systems Ltd. v. Union of India, AIR 1988 SC 782 that even if the person who dealt with the Act understood it in a particular manner, that does not prevent the Court in giving to the Court, its true construction. It is pointed out in the decision in Doypack Systems Ltd. v. Union of India (cited supra) that the doctrine is confined to the construction of ambiguous language used in very old statutes where indeed the language itself have had a rather different meaning in those days. The Learned author Justice Shri G.P. Singh, in his celebrated treatise quoted that: “Subject to use made of contemporary official statements and statutory instruments the principle of contemporanea expositio is not applicable to a modern statute.” Same subject has been dealt with in Punjab Traders v. State of Punjab, 1991 (1) SCC 86. Considering this settled position, we do not think we are in a position to accept the contention raised. Same logic applies that even if the Mathadi Board’s stand was somewhat contradictory in the case of Irkar Sahu’s & Anr. v. Bombay Port Trust (cited supra), it did not really create a bar against it from changing its stance for a correct interpretation of Section 2(11) of the Mathadi Act. 41. The next argument was based on Article 254 of the Constitution of India. It was suggested that the said Article prescribes that in the matters falling in the Concurrent List, any Central legislation, whether made before or after a State legislation, supersede such State legislation, if they both cover the same field. An exception to this lies in Sub-Article (2), which preserves and protects a State enactment to the extent it has received the assent of the Vice President. Needless to say that this challenge is in the nature of a challenge to the constitutional validity of the provision of the State Act. Such was not the challenge. The appellants never urged that the Act was constitutionally invalid and in fact, the constitutional validity of the Act has already been upheld. Article 254 does not provide a guide for the interpretation of a State statute. The appellants are also not certain about the proposal of the assent of the Vice President, which was received on 5.6.1969, since the said proposal could not be located by them. Therefore, all the arguments must fall to the ground once the Presidential assent under Article 254(2) is received to the Act. This is apart from the fact that the grounds on the basis of Article 254 cannot be used for the interpretation of the Act. In strict sense, this question was never before the Full Bench and in our opinion, the Full Bench rightly rejected this argument on the ground that this was not the case of the appellants. Therefore, reliance placed on the decisions in Kaiser-I-Hind Pvt. Ltd. v. National Textile Corporation Ltd., V (2002) SLT 555=2002 (8) SCC 182 ; and Thirumuruga Kirupa Nanda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust v. State of Tamil Nadu & Ors., 1996 (3) SCC 15 , is of no consequence. The argument is thus rejected. | 1[ds]41. The next argument was based on Article 254 of the Constitution of India. It was suggested that the said Article prescribes that in the matters falling in the Concurrent List, any Central legislation, whether made before or after a State legislation, supersede such State legislation, if they both cover the same field. An exception to this lies in Sub-Article (2), which preserves and protects a State enactment to the extent it has received the assent of the Vice President. Needless to say that this challenge is in the nature of a challenge to the constitutional validity of the provision of the State Act. Such was not the challenge. The appellants never urged that the Act was constitutionally invalid and in fact, the constitutional validity of the Act has already been upheld. Article 254 does not provide a guide for the interpretation of a State statute. The appellants are also not certain about the proposal of the assent of the Vice President, which was received on 5.6.1969, since the said proposal could not be located by them. Therefore, all the arguments must fall to the ground once the Presidential assent under Article 254(2) is received to the Act. This is apart from the fact that the grounds on the basis of Article 254 cannot be used for the interpretation of the Act. In strict sense, this question was never before the Full Bench and in our opinion, the Full Bench rightly rejected this argument on the ground that this was not the case of the appellants. Therefore, reliance placed on the decisions in Kaiser-I-Hind Pvt. Ltd. v. National Textile Corporation Ltd., V (2002) SLT 555=2002 (8) SCC 182 ; and Thirumuruga Kirupa Nanda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust v. State of Tamil Nadu & Ors., 1996 (3) SCC 15 , is of no consequence. The argument is thus | 1 | 19,564 | 356 | ### 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:
Timber Merchants Association Ltd., specifying that the direct labourers of the employer doing loading/unloading work would not be covered by the said Act. Though these two letters were never procured, they were produced before us. Further, a reference is made to the letter of Mathadi Board (Bombay Iron and Steel Labour Board) dated 17.11.1983, wherein the Mathadi Board understood and applied the Act only to that special class of workers doing loading and unloading operations in scheduled employments, who were in the regular employments of an employer and, therefore, were not protected by other applicable labour legislations. It was also urged that only after the impugned judgment was passed, the Mathadi Boards have started asking the employers to register them under the Act even if they are engaging regular full time workers. It was urged that in Irkar Sahu’s & Anr. v. Bombay Port Trust (cited supra), the Mathadi Board had taken such a position and they could not now turn back from their stance. From this, the learned Senior Counsel urged that since the State Government itself understood the provision in a particular manner, such understanding should be honoured by the Courts. 40. The argument is clearly erroneous for the simple reason that it is not the task of the State Government, more particularly, the Executive Branch to interpret the law; that is the task of the Courts. Even if the State Government understood the Act in a particular manner, that cannot be a true and correct interpretation unless it is so held by the Courts. Therefore, how the State Government officials understood the Act, is really irrelevant. The learned Senior Counsel, in his address, relied on the decision in Godawat Pan Masala Products I.P. Ltd. & Anr. v. Union of India & Ors., IV (2004) SLT 908=2004 (7) SCC 68 , and more particularly, para 32 therein. There, Hon’ble Srikrishna, J. accepted the meaning of the concerned provision as it was understood by the State authorities. However, the learned Judge was careful enough to say that: “While this may not be really conclusive, it certainly indicates the manner of the State authority viewing its power and the Rules under which it was exercising the power. The Court can certainly take into account this situation on the doctrine of contemporanea expositio.” Therefore, this cannot be viewed to be an absolute doctrine. There are number of authorities, which speak about the powers of the Court, vis-a-vis, this doctrine. It has been held in Clyde Navigation Trustees v. Laird, 1883 (8) AC 658; Assheton Smith v. Owen, 1906 (1) Ch.D 179; Goldsmiths’ Co. v. Wyatt, 1907 (1) KB 95; Senior Electric Inspector v. Laxminarayan Chopra, AIR 1962 SC 159 ; Raja Ram Jaiswal v. State of Bihar, AIR 1964 SC 828 ; J.K. Cotton Spinning & Weaving Mills Ltd. v. Union of India, AIR 1988 SC 191 ; Doypack Systems Ltd. v. Union of India, AIR 1988 SC 782 that even if the person who dealt with the Act understood it in a particular manner, that does not prevent the Court in giving to the Court, its true construction. It is pointed out in the decision in Doypack Systems Ltd. v. Union of India (cited supra) that the doctrine is confined to the construction of ambiguous language used in very old statutes where indeed the language itself have had a rather different meaning in those days. The Learned author Justice Shri G.P. Singh, in his celebrated treatise quoted that: “Subject to use made of contemporary official statements and statutory instruments the principle of contemporanea expositio is not applicable to a modern statute.” Same subject has been dealt with in Punjab Traders v. State of Punjab, 1991 (1) SCC 86. Considering this settled position, we do not think we are in a position to accept the contention raised. Same logic applies that even if the Mathadi Board’s stand was somewhat contradictory in the case of Irkar Sahu’s & Anr. v. Bombay Port Trust (cited supra), it did not really create a bar against it from changing its stance for a correct interpretation of Section 2(11) of the Mathadi Act. 41. The next argument was based on Article 254 of the Constitution of India. It was suggested that the said Article prescribes that in the matters falling in the Concurrent List, any Central legislation, whether made before or after a State legislation, supersede such State legislation, if they both cover the same field. An exception to this lies in Sub-Article (2), which preserves and protects a State enactment to the extent it has received the assent of the Vice President. Needless to say that this challenge is in the nature of a challenge to the constitutional validity of the provision of the State Act. Such was not the challenge. The appellants never urged that the Act was constitutionally invalid and in fact, the constitutional validity of the Act has already been upheld. Article 254 does not provide a guide for the interpretation of a State statute. The appellants are also not certain about the proposal of the assent of the Vice President, which was received on 5.6.1969, since the said proposal could not be located by them. Therefore, all the arguments must fall to the ground once the Presidential assent under Article 254(2) is received to the Act. This is apart from the fact that the grounds on the basis of Article 254 cannot be used for the interpretation of the Act. In strict sense, this question was never before the Full Bench and in our opinion, the Full Bench rightly rejected this argument on the ground that this was not the case of the appellants. Therefore, reliance placed on the decisions in Kaiser-I-Hind Pvt. Ltd. v. National Textile Corporation Ltd., V (2002) SLT 555=2002 (8) SCC 182 ; and Thirumuruga Kirupa Nanda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust v. State of Tamil Nadu & Ors., 1996 (3) SCC 15 , is of no consequence. The argument is thus rejected.
### Response:
1
### Explanation:
41. The next argument was based on Article 254 of the Constitution of India. It was suggested that the said Article prescribes that in the matters falling in the Concurrent List, any Central legislation, whether made before or after a State legislation, supersede such State legislation, if they both cover the same field. An exception to this lies in Sub-Article (2), which preserves and protects a State enactment to the extent it has received the assent of the Vice President. Needless to say that this challenge is in the nature of a challenge to the constitutional validity of the provision of the State Act. Such was not the challenge. The appellants never urged that the Act was constitutionally invalid and in fact, the constitutional validity of the Act has already been upheld. Article 254 does not provide a guide for the interpretation of a State statute. The appellants are also not certain about the proposal of the assent of the Vice President, which was received on 5.6.1969, since the said proposal could not be located by them. Therefore, all the arguments must fall to the ground once the Presidential assent under Article 254(2) is received to the Act. This is apart from the fact that the grounds on the basis of Article 254 cannot be used for the interpretation of the Act. In strict sense, this question was never before the Full Bench and in our opinion, the Full Bench rightly rejected this argument on the ground that this was not the case of the appellants. Therefore, reliance placed on the decisions in Kaiser-I-Hind Pvt. Ltd. v. National Textile Corporation Ltd., V (2002) SLT 555=2002 (8) SCC 182 ; and Thirumuruga Kirupa Nanda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust v. State of Tamil Nadu & Ors., 1996 (3) SCC 15 , is of no consequence. The argument is thus
|
Tractors (India), Limited Vs. Mohammed Sayeed & Another | on the night of July 8.7. When the appellant found that the durwans were determined not to obey its lawful order issued by the appellants acting service manager, it decided to take action against them for their gross misconduct. Accordingly on 9-7-1954 charge-sheets were issued to the said durwans including the respondents and an enquiry was held on July 12. Evidence was taken at the said enquiry and full opportunity was given to the durwans to adduce evidence and also to cross-examine the witnesses who had sworn against them. No evidence was adduced by the durwans and they did not choose to cross-examine the witnesses either. As a result of the enquiry the appellant was satisfied that the charge framed against the durwans had been substantiated and that they were guilty of serious misconduct. The appellant took into account the fact that the durwans were members of the staff responsible for the safety of the factory and the appellants property. The appellant accordingly decided to dismiss the said durwans.8. At the material time, however, an industrial dispute was pending before the Third Industrial Tribunal of West Bengal, Calcutta, between the appellant and its workmen, and so the appellant filed applications under S. 33 of the Act before the said tribunal. The tribunal was satisfied that the appellant had held a proper enquiry and that on the evidence adduced at the enquiry the appellant was justified in dismissing the respondents. On this view the tribunal granted permission to the appellant to dismiss the respondents. The Labour Appellate Tribunal, however, was inclined to take the view that the refusal on the part of the durwans to accept the communication addressed to them could not be said to be a deliberate act of disobedience because the communication was written in English and the durwans did not know English nor were they told what it contained. It is on this finding that the appellate tribunal reversed the order of the tribunal under appeal. The appellant contends that the appellate tribunal has exceeded its jurisdiction in interfering with the order passed by the tribunal.9. There is no doubt that under S. 7 (1) (a) of the Industrial Disputes (Appellate Tribunal) Act, 1950, an appeal against the order passed under section 33 could lie only if it involved a substantial question of law.The respondents had urged before the appellate tribunal that their appeal raised a substantial question of law because the tribunal had travelled beyond the implication of the charge-sheet and its order was erroneous inasmuch as it had not considered the inherent contradiction between the affidavit filed by the appellant and the evidence before the tribunal. This latter contention has been rejected by the appellate tribunal, and we think rightly. It, however, took the view that the tribunals conclusion that the respondents were guilty of deliberate insubordination was wrong and it thought that the fact that the respondents did not know what the official communication contained should serve as an extenuating circumstance.In our opinion, in coming to this conclusion, the Labour Appellate Tribunal exceeded its jurisdiction.The simple question of fact which had to be tried by the tribunal under S. 33 was whether a prima facie case had been made out by the appellant against the respondents. The scope of the tribunals jurisdiction in entertaining applications made by the employer under S. 33 as been frequently considered by this Court.There is no doubt that in exercising its jurisdiction under S. 33 the tribunal is not sitting in appeal over the decision of the employer.This position was clearly recognised by the tribunal when it dealt with the present applications; and so it passed an order in favour of the appellant when it was satisfied that the appellant had held a proper enquiry and that the conclusion reached by it could not be said to be mala fide or unfair.On the findings made by the tribunal no question of law arose, much less did a substantial question of law fall to be considered by the Labour Appellate Tribunal. Therefore the Labour Appellate Tribunal should have held that the respondents appeal before it was incompetent. What the Labour Appellate Tribunal has purported to do is to appreciate evidence or itself and this clearly is outside its jurisdiction under S. 7 (1) (a).10. Besides, we may incidentally say that, even on the merits the conclusion of the Labour Appellate Tribunal appears to be patently erroneous. The sequence of events clearly indicates that the refusal of the respondents to accept the office order was deliberate. By their petition presented to the appellant on 7-7-1954 the respondents and their colleagues had clearly told the appellant that unless their demands were met they would not be prepared to work the security arrangements as desired by the appellant. The statement made by the bearer Ajamdar Pandav clearly shows that one of the durwans accepted the order while the others refused; and it also appears in evidence that the durwan who accepted the order got it explained by a clerk and that when the contents of the order were known to the other durwans they refused to take it. The explanation given by the respondents that the bearer had told them that if they refused to take the order they would be sent for by the appellants manager and the order would be explained to them is clearly an afterthought. It is significant that the charge-sheet which was served on the respondents was in English and they did not refuse to accept it on the ground that they did not know what it contained. It is thus clear that, having regard to the broad facts proved in this case, the conclusion of the tribunal was obviously right and the view taken by the Labour Appellate Tribunal is patently erroneous; but, as we have already observed, the Labour Appellate Tribunal had no jurisdiction to deal with questions of fact and that is the principal legal argument against the validity of the order passed by it. | 1[ds]The respondents had urged before the appellate tribunal that their appeal raised a substantial question of law because the tribunal had travelled beyond the implication of theand its order was erroneous inasmuch as it had not considered the inherent contradiction between the affidavit filed by the appellant and the evidence before the tribunal. This latter contention has been rejected by the appellate tribunal, and we thinkour opinion, in coming to this conclusion, the Labour Appellate Tribunal exceeded its jurisdiction.The simple question of fact which had to be tried by the tribunal under S. 33 was whether a prima facie case had been made out by the appellant against the respondents. The scope of the tribunals jurisdiction in entertaining applications made by the employer under S. 33 as been frequently considered by this Court.There is no doubt that in exercising its jurisdiction under S. 33 the tribunal is not sitting in appeal over the decision of the employer.This position was clearly recognised by the tribunal when it dealt with the present applications; and so it passed an order in favour of the appellant when it was satisfied that the appellant had held a proper enquiry and that the conclusion reached by it could not be said to be mala fide or unfair.On the findings made by the tribunal no question of law arose, much less did a substantial question of law fall to be considered by the Labour Appellate Tribunal. Therefore the Labour Appellate Tribunal should have held that the respondents appeal before it was incompetent. What the Labour Appellate Tribunal has purported to do is to appreciate evidence or itself and this clearly is outside its jurisdiction under S. 7 (1) (a).10. Besides, we may incidentally say that, even on the merits the conclusion of the Labour Appellate Tribunal appears to be patently erroneous. The sequence of events clearly indicates that the refusal of the respondents to accept the office order wasis thus clear that, having regard to the broad facts proved in this case, the conclusion of the tribunal was obviously right and the view taken by the Labour Appellate Tribunal is patently erroneous; but, as we have already observed, the Labour Appellate Tribunal had no jurisdiction to deal with questions of fact and that is the principal legal argument against the validity of the order passed by it. | 1 | 1,784 | 418 | ### Instruction:
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on the night of July 8.7. When the appellant found that the durwans were determined not to obey its lawful order issued by the appellants acting service manager, it decided to take action against them for their gross misconduct. Accordingly on 9-7-1954 charge-sheets were issued to the said durwans including the respondents and an enquiry was held on July 12. Evidence was taken at the said enquiry and full opportunity was given to the durwans to adduce evidence and also to cross-examine the witnesses who had sworn against them. No evidence was adduced by the durwans and they did not choose to cross-examine the witnesses either. As a result of the enquiry the appellant was satisfied that the charge framed against the durwans had been substantiated and that they were guilty of serious misconduct. The appellant took into account the fact that the durwans were members of the staff responsible for the safety of the factory and the appellants property. The appellant accordingly decided to dismiss the said durwans.8. At the material time, however, an industrial dispute was pending before the Third Industrial Tribunal of West Bengal, Calcutta, between the appellant and its workmen, and so the appellant filed applications under S. 33 of the Act before the said tribunal. The tribunal was satisfied that the appellant had held a proper enquiry and that on the evidence adduced at the enquiry the appellant was justified in dismissing the respondents. On this view the tribunal granted permission to the appellant to dismiss the respondents. The Labour Appellate Tribunal, however, was inclined to take the view that the refusal on the part of the durwans to accept the communication addressed to them could not be said to be a deliberate act of disobedience because the communication was written in English and the durwans did not know English nor were they told what it contained. It is on this finding that the appellate tribunal reversed the order of the tribunal under appeal. The appellant contends that the appellate tribunal has exceeded its jurisdiction in interfering with the order passed by the tribunal.9. There is no doubt that under S. 7 (1) (a) of the Industrial Disputes (Appellate Tribunal) Act, 1950, an appeal against the order passed under section 33 could lie only if it involved a substantial question of law.The respondents had urged before the appellate tribunal that their appeal raised a substantial question of law because the tribunal had travelled beyond the implication of the charge-sheet and its order was erroneous inasmuch as it had not considered the inherent contradiction between the affidavit filed by the appellant and the evidence before the tribunal. This latter contention has been rejected by the appellate tribunal, and we think rightly. It, however, took the view that the tribunals conclusion that the respondents were guilty of deliberate insubordination was wrong and it thought that the fact that the respondents did not know what the official communication contained should serve as an extenuating circumstance.In our opinion, in coming to this conclusion, the Labour Appellate Tribunal exceeded its jurisdiction.The simple question of fact which had to be tried by the tribunal under S. 33 was whether a prima facie case had been made out by the appellant against the respondents. The scope of the tribunals jurisdiction in entertaining applications made by the employer under S. 33 as been frequently considered by this Court.There is no doubt that in exercising its jurisdiction under S. 33 the tribunal is not sitting in appeal over the decision of the employer.This position was clearly recognised by the tribunal when it dealt with the present applications; and so it passed an order in favour of the appellant when it was satisfied that the appellant had held a proper enquiry and that the conclusion reached by it could not be said to be mala fide or unfair.On the findings made by the tribunal no question of law arose, much less did a substantial question of law fall to be considered by the Labour Appellate Tribunal. Therefore the Labour Appellate Tribunal should have held that the respondents appeal before it was incompetent. What the Labour Appellate Tribunal has purported to do is to appreciate evidence or itself and this clearly is outside its jurisdiction under S. 7 (1) (a).10. Besides, we may incidentally say that, even on the merits the conclusion of the Labour Appellate Tribunal appears to be patently erroneous. The sequence of events clearly indicates that the refusal of the respondents to accept the office order was deliberate. By their petition presented to the appellant on 7-7-1954 the respondents and their colleagues had clearly told the appellant that unless their demands were met they would not be prepared to work the security arrangements as desired by the appellant. The statement made by the bearer Ajamdar Pandav clearly shows that one of the durwans accepted the order while the others refused; and it also appears in evidence that the durwan who accepted the order got it explained by a clerk and that when the contents of the order were known to the other durwans they refused to take it. The explanation given by the respondents that the bearer had told them that if they refused to take the order they would be sent for by the appellants manager and the order would be explained to them is clearly an afterthought. It is significant that the charge-sheet which was served on the respondents was in English and they did not refuse to accept it on the ground that they did not know what it contained. It is thus clear that, having regard to the broad facts proved in this case, the conclusion of the tribunal was obviously right and the view taken by the Labour Appellate Tribunal is patently erroneous; but, as we have already observed, the Labour Appellate Tribunal had no jurisdiction to deal with questions of fact and that is the principal legal argument against the validity of the order passed by it.
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The respondents had urged before the appellate tribunal that their appeal raised a substantial question of law because the tribunal had travelled beyond the implication of theand its order was erroneous inasmuch as it had not considered the inherent contradiction between the affidavit filed by the appellant and the evidence before the tribunal. This latter contention has been rejected by the appellate tribunal, and we thinkour opinion, in coming to this conclusion, the Labour Appellate Tribunal exceeded its jurisdiction.The simple question of fact which had to be tried by the tribunal under S. 33 was whether a prima facie case had been made out by the appellant against the respondents. The scope of the tribunals jurisdiction in entertaining applications made by the employer under S. 33 as been frequently considered by this Court.There is no doubt that in exercising its jurisdiction under S. 33 the tribunal is not sitting in appeal over the decision of the employer.This position was clearly recognised by the tribunal when it dealt with the present applications; and so it passed an order in favour of the appellant when it was satisfied that the appellant had held a proper enquiry and that the conclusion reached by it could not be said to be mala fide or unfair.On the findings made by the tribunal no question of law arose, much less did a substantial question of law fall to be considered by the Labour Appellate Tribunal. Therefore the Labour Appellate Tribunal should have held that the respondents appeal before it was incompetent. What the Labour Appellate Tribunal has purported to do is to appreciate evidence or itself and this clearly is outside its jurisdiction under S. 7 (1) (a).10. Besides, we may incidentally say that, even on the merits the conclusion of the Labour Appellate Tribunal appears to be patently erroneous. The sequence of events clearly indicates that the refusal of the respondents to accept the office order wasis thus clear that, having regard to the broad facts proved in this case, the conclusion of the tribunal was obviously right and the view taken by the Labour Appellate Tribunal is patently erroneous; but, as we have already observed, the Labour Appellate Tribunal had no jurisdiction to deal with questions of fact and that is the principal legal argument against the validity of the order passed by it.
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Ram Lal Kapur And Sons (P) Ltd Vs. Ram Nath And Others | preferred an appeal against the order of the Rent Controller to the learned District Judge, Delhi, but the appeal was dismissed. Thereafter he moved the High Court of the Punjab under Art. 227 of the Constitution challenging the correctness and propriety of every finding by the Rent Controller and of the District Judge on appeal. This petition came on for hearing before a learned Single Judge of the High Court. A Division Bench of the High Court had sometime previously held in another batch of cases (British Medical Stores v. Bhagirath Mal, ((S) AIR 1955 Punj 5)) arising under the Act, that S. 7A was unconstitutional and void and following this decision he allowed the petition of the first respondent and set aside the order of the Rent Controller as without jurisdiction, without considering the other matters which would arise if the section was valid and the Rent Controller had jurisdiction. From this decision of learned Single Judge, the appellant preferred an appeal under the Letters Patent to a Division Bench.4. Meanwhile the judgment in British Medical Stores v. Bhagirath Mal, Civil Appeals Nos. 172 to 186 of 1958: (AIR 1962 SC 646 ) was brought up by way of appeal to this Court and as the appeal was getting ready to be heard, the appellants applied for and obtained special leave to appeal to this Court even during the pendency in the High Court, of the appeal by it under the Letters Patent. The Letters Patent appeal was thereafter withdrawn by the appellant.5.The appeal in the British Medical Stores case was heard by this Court and the same was allowed by a judgment dated August 2, 1961 and this Court held reversing the judgment of the Punjab High Court that S. 7A of the Act was valid, Civil Appeals Nos. 172 to 186 of 1953 (AIR 1962 SC 646 ).6. It would thus be seen that the only point which the learned Judge considered and on which the revision petition of the landlord - first respondent was allowed no longer subsists and hence the appellant is entitled to have the appeal allowed. As the learned Single Judge did not consider the other objections raised by the first respondent to the order of the Controller fixing the standard fair rent payable by the appellant, the appeal has to be remanded to the High Court for being dealt with according to law.7. Before concluding it is necessary to advert to a preliminary objection to the hearing of the appeal raised by learned Counsel for the landlord-respondent. His submission was that the special leave which was granted by this Court ex parte should be revoked as having been improperly obtained. The facts in relation thereto were these. The judgment of the learned Single Judge to appeal from which the leave was granted was dated January 5, 1955 and the application to this Court seeking leave was made on January 5, 1959, i.e., after lapse of four years. It is obvious that it was an application which had been filed far beyond the period of limitation prescribed by the rules of this Court. Learned Counsel for the respondent urged that there were no sufficient grounds for condoning that long delay and that we should therefore revoke the leave.8. We are not disposed to accede to this request for revoking the leave in the peculiar circumstances of this case. Learned counsel invited our attention to a few decisions in which leave granted ex parte was revoked at the stage of the hearing of the appeal on an objection raised by the respondent; but we do not consider that the facts of the present appeal bear any analogy to those in the decisions cited. In the first place, there was no by-passing the High Court, because the appellant had filed an appeal under the Letters Patent and it was during the pendency of that appeal that he moved this Court for leave. Next, there was no suppression of any fact which would have relevance to the granting or withholding of the leave, and the exact position as it stood at the time the petition was filed was set out in it. Thirdly, it is obvious that if the delay had not been condoned and leave refused when application therefore was made in January 1959, the appellant would have prosecuted his Letters Patent appeal and he could obviously have come up here if the decision went against him. In fact, the grant of special leave in the circumstances of this case, merely served to shorten the proceedings, and this Court acceded to the petition for leave obviously because the appeal in this Court from judgments in the case of the British Medical Stores etc. were getting ready for hearing and there was some advantage if the appellant was in a position to intervene in those other appeals. In view of these considerations we are of the opinion that this is not a case in which the leave should he revoked.9. Nevertheless, we consider that we should add that, except in very rare cases, if not invariably, it should he proper that this Court should adopt as a settled rule that the delay in making an application for special leave should not be condoned ex parte but that before granting leave in such cases notice should be served on the respondent and the latter afforded an opportunity to resist the grant of the leave. Such a course besides being just, would be preferable to having to decide applications for revoking leave on the ground that the delay in making the same was improperly condoned years after the grant of the leave when the Court naturally feels embarrassed by the injustice which would be caused to the appellant if leave were then revoked when he would be deprived of the opportunity of pursuing other remedies if leave had been refused earlier. We would suggest that the rules of the Court should be amended suitably to achieve this purpose. | 1[ds]ut we do not consider that the facts of the present appeal bear any analogy to those in the decisions cited. In the first place, there was no by-passing the High Court, because the appellant had filed an appeal under the Letters Patent and it was during the pendency of that appeal that he moved this Court for leave. Next, there was no suppression of any fact which would have relevance to the granting or withholding of the leave, and the exact position as it stood at the time the petition was filed was set out in it. Thirdly, it is obvious that if the delay had not been condoned and leave refused when application therefore was made in January 1959, the appellant would have prosecuted his Letters Patent appeal and he could obviously have come up here if the decision went against him. In fact, the grant of special leave in the circumstances of this case, merely served to shorten the proceedings, and this Court acceded to the petition for leave obviously because the appeal in this Court from judgments in the case of the British Medical Stores etc. were getting ready for hearing and there was some advantage if the appellant was in a position to intervene in those other appeals. In view of these considerations we are of the opinion that this is not a case in which the leave should he revoked.9. Nevertheless, we consider that we should add that, except in very rare cases, if not invariably, it should he proper that this Court should adopt as a settled rule that the delay in making an application for special leave should not be condoned ex parte but that before granting leave in such cases notice should be served on the respondent and the latter afforded an opportunity to resist the grant of the leave. Such a course besides being just, would be preferable to having to decide applications for revoking leave on the ground that the delay in making the same was improperly condoned years after the grant of the leave when the Court naturally feels embarrassed by the injustice which would be caused to the appellant if leave were then revoked when he would be deprived of the opportunity of pursuing other remedies if leave had been refused earlier. We would suggest that the rules of the Court should be amended suitably to achieve this purpose. | 1 | 1,350 | 430 | ### 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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preferred an appeal against the order of the Rent Controller to the learned District Judge, Delhi, but the appeal was dismissed. Thereafter he moved the High Court of the Punjab under Art. 227 of the Constitution challenging the correctness and propriety of every finding by the Rent Controller and of the District Judge on appeal. This petition came on for hearing before a learned Single Judge of the High Court. A Division Bench of the High Court had sometime previously held in another batch of cases (British Medical Stores v. Bhagirath Mal, ((S) AIR 1955 Punj 5)) arising under the Act, that S. 7A was unconstitutional and void and following this decision he allowed the petition of the first respondent and set aside the order of the Rent Controller as without jurisdiction, without considering the other matters which would arise if the section was valid and the Rent Controller had jurisdiction. From this decision of learned Single Judge, the appellant preferred an appeal under the Letters Patent to a Division Bench.4. Meanwhile the judgment in British Medical Stores v. Bhagirath Mal, Civil Appeals Nos. 172 to 186 of 1958: (AIR 1962 SC 646 ) was brought up by way of appeal to this Court and as the appeal was getting ready to be heard, the appellants applied for and obtained special leave to appeal to this Court even during the pendency in the High Court, of the appeal by it under the Letters Patent. The Letters Patent appeal was thereafter withdrawn by the appellant.5.The appeal in the British Medical Stores case was heard by this Court and the same was allowed by a judgment dated August 2, 1961 and this Court held reversing the judgment of the Punjab High Court that S. 7A of the Act was valid, Civil Appeals Nos. 172 to 186 of 1953 (AIR 1962 SC 646 ).6. It would thus be seen that the only point which the learned Judge considered and on which the revision petition of the landlord - first respondent was allowed no longer subsists and hence the appellant is entitled to have the appeal allowed. As the learned Single Judge did not consider the other objections raised by the first respondent to the order of the Controller fixing the standard fair rent payable by the appellant, the appeal has to be remanded to the High Court for being dealt with according to law.7. Before concluding it is necessary to advert to a preliminary objection to the hearing of the appeal raised by learned Counsel for the landlord-respondent. His submission was that the special leave which was granted by this Court ex parte should be revoked as having been improperly obtained. The facts in relation thereto were these. The judgment of the learned Single Judge to appeal from which the leave was granted was dated January 5, 1955 and the application to this Court seeking leave was made on January 5, 1959, i.e., after lapse of four years. It is obvious that it was an application which had been filed far beyond the period of limitation prescribed by the rules of this Court. Learned Counsel for the respondent urged that there were no sufficient grounds for condoning that long delay and that we should therefore revoke the leave.8. We are not disposed to accede to this request for revoking the leave in the peculiar circumstances of this case. Learned counsel invited our attention to a few decisions in which leave granted ex parte was revoked at the stage of the hearing of the appeal on an objection raised by the respondent; but we do not consider that the facts of the present appeal bear any analogy to those in the decisions cited. In the first place, there was no by-passing the High Court, because the appellant had filed an appeal under the Letters Patent and it was during the pendency of that appeal that he moved this Court for leave. Next, there was no suppression of any fact which would have relevance to the granting or withholding of the leave, and the exact position as it stood at the time the petition was filed was set out in it. Thirdly, it is obvious that if the delay had not been condoned and leave refused when application therefore was made in January 1959, the appellant would have prosecuted his Letters Patent appeal and he could obviously have come up here if the decision went against him. In fact, the grant of special leave in the circumstances of this case, merely served to shorten the proceedings, and this Court acceded to the petition for leave obviously because the appeal in this Court from judgments in the case of the British Medical Stores etc. were getting ready for hearing and there was some advantage if the appellant was in a position to intervene in those other appeals. In view of these considerations we are of the opinion that this is not a case in which the leave should he revoked.9. Nevertheless, we consider that we should add that, except in very rare cases, if not invariably, it should he proper that this Court should adopt as a settled rule that the delay in making an application for special leave should not be condoned ex parte but that before granting leave in such cases notice should be served on the respondent and the latter afforded an opportunity to resist the grant of the leave. Such a course besides being just, would be preferable to having to decide applications for revoking leave on the ground that the delay in making the same was improperly condoned years after the grant of the leave when the Court naturally feels embarrassed by the injustice which would be caused to the appellant if leave were then revoked when he would be deprived of the opportunity of pursuing other remedies if leave had been refused earlier. We would suggest that the rules of the Court should be amended suitably to achieve this purpose.
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ut we do not consider that the facts of the present appeal bear any analogy to those in the decisions cited. In the first place, there was no by-passing the High Court, because the appellant had filed an appeal under the Letters Patent and it was during the pendency of that appeal that he moved this Court for leave. Next, there was no suppression of any fact which would have relevance to the granting or withholding of the leave, and the exact position as it stood at the time the petition was filed was set out in it. Thirdly, it is obvious that if the delay had not been condoned and leave refused when application therefore was made in January 1959, the appellant would have prosecuted his Letters Patent appeal and he could obviously have come up here if the decision went against him. In fact, the grant of special leave in the circumstances of this case, merely served to shorten the proceedings, and this Court acceded to the petition for leave obviously because the appeal in this Court from judgments in the case of the British Medical Stores etc. were getting ready for hearing and there was some advantage if the appellant was in a position to intervene in those other appeals. In view of these considerations we are of the opinion that this is not a case in which the leave should he revoked.9. Nevertheless, we consider that we should add that, except in very rare cases, if not invariably, it should he proper that this Court should adopt as a settled rule that the delay in making an application for special leave should not be condoned ex parte but that before granting leave in such cases notice should be served on the respondent and the latter afforded an opportunity to resist the grant of the leave. Such a course besides being just, would be preferable to having to decide applications for revoking leave on the ground that the delay in making the same was improperly condoned years after the grant of the leave when the Court naturally feels embarrassed by the injustice which would be caused to the appellant if leave were then revoked when he would be deprived of the opportunity of pursuing other remedies if leave had been refused earlier. We would suggest that the rules of the Court should be amended suitably to achieve this purpose.
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Union Textile Traiders, Vs. Shri Bhawani Cotton Mills Ltd | The High Court repelled all the contentions raised before it and dismissed the application.4. The main emphasis before us has been laid by learned counsel for the appellant on R. III of the Rules of Arbitration of the Indian Chamber of Commerce which, according to him, comes into conflict with the provisions of the Act. That Rule provides that the Tribunal shall consist of such persons as may be selected by the Committee of the Chamber from time to time. Sub-Rule (3) reads:"The Committee may, at any time if they think proper so to do, add to the said list the names of other persons qualified as aforesaid. A list of the members of the Tribunal complete for the time being shall be kept by the Registrar, and shall always be open for inspection by members on application and at the discretion of the Registrar, also by persons other than members".It is urged that the non-disclosure of the names of the arbitrators by the Registrar is violative not only of the rules of natural justice but also infringes the provisions of the Act. Before the High Court and before us reliance has been placed on an unreported judgment of the Calcutta High Court in Matter No. 95 of 1963, D/- 10-4-1964 (Cal) Suraj Ratan Binany v. Hindustan Motors Ltd. In that case a similar contention had been raised and it was held that if the names of the arbitrators were not known to the parties until the award was filed the parties would not be in a position to know whether the arbitrators had misconducted themselves entailing removal under section 11 of the Act or a case had arisen for moving the court under section 5 of the Act for leave to revoke the authority of an appointed arbitrator. In the judgment under appeal, however, that view was not followed and it had been held that the Arbitration Rules of the Chamber of Commerce did not offend any of the sections of the Act as the powers of the court under Ss. 5 and 11 remained unaffected by the aforesaid Rules.5. In our judgment there is no merit in the challenge to the validity of the arbitration agreement on the ground that the Rules of the Indian Chamber of Commerce which is to be the arbitrator, enable the Registrar of that Chamber to withhold disclosure of the names of the Arbitration Court to a party which does not happen to be a member of the Chamber. The power given to the Registrar is discretionary and he is not bound in every case to refuse to disclose the names.At any rate, as soon as proceedings before the arbitrators commence both parties are in a position to know the names and particulars of the arbitrators and if there is any objection on well-known grounds to their conducting the arbitration the same can be taken at that stage. Under S. 5 it is not essential that the authority of an appointed arbitrator should be got revoked before the commencement of the arbitration proceedings. Section 11 contemplates a stage subsequent to the arbitrators entering on the reference. We can see no conflict between Rule III (3) of the Rules of Arbitration of Chamber of Commerce and Ss. 5 and 11 or S. 30 of the Act. These Rules do not interfere with or take away the powers and the jurisdiction of the court under the aforesaid provisions.It must be remembered that the appellant agreed to submit to the arbitration of Indian Chamber of Commerce which meant that it was bound by all the Rules of Arbitration of the said body. No illegality or invalidity can be projected into the agreement by the presence of Rule III (3).6. Our attention has been drawn to a statement in Russel on Arbitration, 17th Edn., at page 207 that the appointment of an arbitrator by a party is not complete without communication thereof to the other party. This Rule can be of no avail to the appellant because in the present case the arbitrator was known, the arbitrator being the Chamber of Commerce. Under its Rules the Chamber is authorised to delegate its power to a smaller body. As the Rules were expressly or by necessary implication incorporated into the contract the Chamber would have the power to appoint a court, by its Registrar, to decide the dispute. The appointment of the arbitrator was thus complete in every sense in the present case. It could not be said that it would become complete only when the names of persons constituting the court of arbitration were communicated. Those persons only discharge the duty which lay on the Chamber in the matter of arbitration.7. It is noteworthy that the Rules of chamber of Commerce in various parts of the country contain provisions similar to the one the validity of which has been impugned. For instance Rule V (4) of the Rules of Bengal Chamber of Commerce provides that the names or name of the persons or person constituting the court shall not ordinarily be disclosed to the parties nor shall the parties be entitled to such information as of right. A similar rule is to be found in bye-law 8 of the Bombay Chamber of Commerce and Rule V (5) of Arbitration Rules of Madras Chamber of Commerce. It appears that the aforesaid Rule which has been framed by all these bodies of long standing and experience in the field of business is based on the elimination of all possibility or chance of a party trying to influence the members of the Arbitration Court before they enter upon or proceed with the reference. It is axiomatic that as soon as a party appears before them or the arbitration proceedings commence the names of the arbitrators can no longer remain a secret and it is always open to a party to initiate proceedings on the ground of bias or prejudicial interest even at that stage or after the award is made. | 0[ds]In the judgment under appeal, however, that view was not followed and it had been held that the Arbitration Rules of the Chamber of Commerce did not offend any of the sections of the Act as the powers of the court under Ss. 5 and 11 remained unaffected by the aforesaid Rules.5. In our judgment there is no merit in the challenge to the validity of the arbitration agreement on the ground that the Rules of the Indian Chamber of Commerce which is to be the arbitrator, enable the Registrar of that Chamber to withhold disclosure of the names of the Arbitration Court to a party which does not happen to be a member of the Chamber. The power given to the Registrar is discretionary and he is not bound in every case to refuse to disclose the names.At any rate, as soon as proceedings before the arbitrators commence both parties are in a position to know the names and particulars of the arbitrators and if there is any objection on well-known grounds to their conducting the arbitration the same can be taken at that stage. Under S. 5 it is not essential that the authority of an appointed arbitrator should be got revoked before the commencement of the arbitration proceedings. Section 11 contemplates a stage subsequent to the arbitrators entering on the reference. We can see no conflict between Rule III (3) of the Rules of Arbitration of Chamber of Commerce and Ss. 5 and 11 or S. 30 of the Act. These Rules do not interfere with or take away the powers and the jurisdiction of the court under the aforesaid provisions.It must be remembered that the appellant agreed to submit to the arbitration of Indian Chamber of Commerce which meant that it was bound by all the Rules of Arbitration of the said body. No illegality or invalidity can be projected into the agreement by the presence of Rule III (3).6. Our attention has been drawn to a statement in Russel on Arbitration, 17th Edn., at page 207 that the appointment of an arbitrator by a party is not complete without communication thereof to the other party. This Rule can be of no avail to the appellant because in the present case the arbitrator was known, the arbitrator being the Chamber of Commerce. Under its Rules the Chamber is authorised to delegate its power to a smaller body. As the Rules were expressly or by necessary implication incorporated into the contract the Chamber would have the power to appoint a court, by its Registrar, to decide the dispute. The appointment of the arbitrator was thus complete in every sense in the present case. It could not be said that it would become complete only when the names of persons constituting the court of arbitration were communicated. Those persons only discharge the duty which lay on the Chamber in the matter of arbitration.7. It is noteworthy that the Rules of chamber of Commerce in various parts of the country contain provisions similar to the one the validity of which has been impugned. For instance Rule V (4) of the Rules of Bengal Chamber of Commerce provides that the names or name of the persons or person constituting the court shall not ordinarily be disclosed to the parties nor shall the parties be entitled to such information as of right. A similar rule is to be found in bye-law 8 of the Bombay Chamber of Commerce and Rule V (5) of Arbitration Rules of Madras Chamber of Commerce. It appears that the aforesaid Rule which has been framed by all these bodies of long standing and experience in the field of business is based on the elimination of all possibility or chance of a party trying to influence the members of the Arbitration Court before they enter upon or proceed with the reference. It is axiomatic that as soon as a party appears before them or the arbitration proceedings commence the names of the arbitrators can no longer remain a secret and it is always open to a party to initiate proceedings on the ground of bias or prejudicial interest even at that stage or after the award is made. | 0 | 1,510 | 745 | ### Instruction:
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The High Court repelled all the contentions raised before it and dismissed the application.4. The main emphasis before us has been laid by learned counsel for the appellant on R. III of the Rules of Arbitration of the Indian Chamber of Commerce which, according to him, comes into conflict with the provisions of the Act. That Rule provides that the Tribunal shall consist of such persons as may be selected by the Committee of the Chamber from time to time. Sub-Rule (3) reads:"The Committee may, at any time if they think proper so to do, add to the said list the names of other persons qualified as aforesaid. A list of the members of the Tribunal complete for the time being shall be kept by the Registrar, and shall always be open for inspection by members on application and at the discretion of the Registrar, also by persons other than members".It is urged that the non-disclosure of the names of the arbitrators by the Registrar is violative not only of the rules of natural justice but also infringes the provisions of the Act. Before the High Court and before us reliance has been placed on an unreported judgment of the Calcutta High Court in Matter No. 95 of 1963, D/- 10-4-1964 (Cal) Suraj Ratan Binany v. Hindustan Motors Ltd. In that case a similar contention had been raised and it was held that if the names of the arbitrators were not known to the parties until the award was filed the parties would not be in a position to know whether the arbitrators had misconducted themselves entailing removal under section 11 of the Act or a case had arisen for moving the court under section 5 of the Act for leave to revoke the authority of an appointed arbitrator. In the judgment under appeal, however, that view was not followed and it had been held that the Arbitration Rules of the Chamber of Commerce did not offend any of the sections of the Act as the powers of the court under Ss. 5 and 11 remained unaffected by the aforesaid Rules.5. In our judgment there is no merit in the challenge to the validity of the arbitration agreement on the ground that the Rules of the Indian Chamber of Commerce which is to be the arbitrator, enable the Registrar of that Chamber to withhold disclosure of the names of the Arbitration Court to a party which does not happen to be a member of the Chamber. The power given to the Registrar is discretionary and he is not bound in every case to refuse to disclose the names.At any rate, as soon as proceedings before the arbitrators commence both parties are in a position to know the names and particulars of the arbitrators and if there is any objection on well-known grounds to their conducting the arbitration the same can be taken at that stage. Under S. 5 it is not essential that the authority of an appointed arbitrator should be got revoked before the commencement of the arbitration proceedings. Section 11 contemplates a stage subsequent to the arbitrators entering on the reference. We can see no conflict between Rule III (3) of the Rules of Arbitration of Chamber of Commerce and Ss. 5 and 11 or S. 30 of the Act. These Rules do not interfere with or take away the powers and the jurisdiction of the court under the aforesaid provisions.It must be remembered that the appellant agreed to submit to the arbitration of Indian Chamber of Commerce which meant that it was bound by all the Rules of Arbitration of the said body. No illegality or invalidity can be projected into the agreement by the presence of Rule III (3).6. Our attention has been drawn to a statement in Russel on Arbitration, 17th Edn., at page 207 that the appointment of an arbitrator by a party is not complete without communication thereof to the other party. This Rule can be of no avail to the appellant because in the present case the arbitrator was known, the arbitrator being the Chamber of Commerce. Under its Rules the Chamber is authorised to delegate its power to a smaller body. As the Rules were expressly or by necessary implication incorporated into the contract the Chamber would have the power to appoint a court, by its Registrar, to decide the dispute. The appointment of the arbitrator was thus complete in every sense in the present case. It could not be said that it would become complete only when the names of persons constituting the court of arbitration were communicated. Those persons only discharge the duty which lay on the Chamber in the matter of arbitration.7. It is noteworthy that the Rules of chamber of Commerce in various parts of the country contain provisions similar to the one the validity of which has been impugned. For instance Rule V (4) of the Rules of Bengal Chamber of Commerce provides that the names or name of the persons or person constituting the court shall not ordinarily be disclosed to the parties nor shall the parties be entitled to such information as of right. A similar rule is to be found in bye-law 8 of the Bombay Chamber of Commerce and Rule V (5) of Arbitration Rules of Madras Chamber of Commerce. It appears that the aforesaid Rule which has been framed by all these bodies of long standing and experience in the field of business is based on the elimination of all possibility or chance of a party trying to influence the members of the Arbitration Court before they enter upon or proceed with the reference. It is axiomatic that as soon as a party appears before them or the arbitration proceedings commence the names of the arbitrators can no longer remain a secret and it is always open to a party to initiate proceedings on the ground of bias or prejudicial interest even at that stage or after the award is made.
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### Explanation:
In the judgment under appeal, however, that view was not followed and it had been held that the Arbitration Rules of the Chamber of Commerce did not offend any of the sections of the Act as the powers of the court under Ss. 5 and 11 remained unaffected by the aforesaid Rules.5. In our judgment there is no merit in the challenge to the validity of the arbitration agreement on the ground that the Rules of the Indian Chamber of Commerce which is to be the arbitrator, enable the Registrar of that Chamber to withhold disclosure of the names of the Arbitration Court to a party which does not happen to be a member of the Chamber. The power given to the Registrar is discretionary and he is not bound in every case to refuse to disclose the names.At any rate, as soon as proceedings before the arbitrators commence both parties are in a position to know the names and particulars of the arbitrators and if there is any objection on well-known grounds to their conducting the arbitration the same can be taken at that stage. Under S. 5 it is not essential that the authority of an appointed arbitrator should be got revoked before the commencement of the arbitration proceedings. Section 11 contemplates a stage subsequent to the arbitrators entering on the reference. We can see no conflict between Rule III (3) of the Rules of Arbitration of Chamber of Commerce and Ss. 5 and 11 or S. 30 of the Act. These Rules do not interfere with or take away the powers and the jurisdiction of the court under the aforesaid provisions.It must be remembered that the appellant agreed to submit to the arbitration of Indian Chamber of Commerce which meant that it was bound by all the Rules of Arbitration of the said body. No illegality or invalidity can be projected into the agreement by the presence of Rule III (3).6. Our attention has been drawn to a statement in Russel on Arbitration, 17th Edn., at page 207 that the appointment of an arbitrator by a party is not complete without communication thereof to the other party. This Rule can be of no avail to the appellant because in the present case the arbitrator was known, the arbitrator being the Chamber of Commerce. Under its Rules the Chamber is authorised to delegate its power to a smaller body. As the Rules were expressly or by necessary implication incorporated into the contract the Chamber would have the power to appoint a court, by its Registrar, to decide the dispute. The appointment of the arbitrator was thus complete in every sense in the present case. It could not be said that it would become complete only when the names of persons constituting the court of arbitration were communicated. Those persons only discharge the duty which lay on the Chamber in the matter of arbitration.7. It is noteworthy that the Rules of chamber of Commerce in various parts of the country contain provisions similar to the one the validity of which has been impugned. For instance Rule V (4) of the Rules of Bengal Chamber of Commerce provides that the names or name of the persons or person constituting the court shall not ordinarily be disclosed to the parties nor shall the parties be entitled to such information as of right. A similar rule is to be found in bye-law 8 of the Bombay Chamber of Commerce and Rule V (5) of Arbitration Rules of Madras Chamber of Commerce. It appears that the aforesaid Rule which has been framed by all these bodies of long standing and experience in the field of business is based on the elimination of all possibility or chance of a party trying to influence the members of the Arbitration Court before they enter upon or proceed with the reference. It is axiomatic that as soon as a party appears before them or the arbitration proceedings commence the names of the arbitrators can no longer remain a secret and it is always open to a party to initiate proceedings on the ground of bias or prejudicial interest even at that stage or after the award is made.
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K. SREEDHAR RAO Vs. UNION OF INDIA MINISTRY OF LAW AND JUSTICE SECRETARY | and 223 of the Constitution by the learned Senior Advocate appearing on behalf of the petitioner is concerned, on conjoint reading of the aforesaid provisions, we are of the opinion that so long as a Judge who is performing his duties as an Acting Chief Justice appointed under Article 223 of the Constitution, shall be entitled to the salary and other perks as that of the Chief Justice. Meaning thereby, what is contemplated by the aforesaid provisions is only payment of salary during the tenure while functioning as Acting Chief Justice as that of a Chief Justice. Even by virtue of the provisions of the 1954 Act, it is for the limited purpose for computation of the salary that Acting Chief Justice is treated as Chief Justice. 6.3 Now so far as the submission on behalf of the petitioner, relying upon para 11 Part D of the Second Schedule that the ?Chief Justice? includes an ?Acting Chief Justice? and that such a Judge who is functioning as an Acting Chief Justice be paid the salary of a Chief Justice and for all practical purposes he has performed the duties of a Chief Justice and therefore he shall be paid the pensionary benefits admissible to a retired Chief Justice is concerned, it is required to be noted that there is a clear distinction between a Judge appointed as an Acting Chief Justice under Article 223 of the Constitution of India and a Chief Justice appointed under Article 217 of the Constitution. Considering Article 223 of the Constitution of India, it can be seen that a Judge of the High Court is appointed as an Acting Chief Justice under Article 223 of the Constitution for the purposes of the duties of the Chief Justice and the office of the Chief Justice remains vacant. In a case where the office of the Chief Justice of the High Court is vacant, the duties of the office of the Chief Justice will be performed by any other Judge as Acting Chief Justice. Therefore, only for the limited purpose of salary, such an Acting Chief Justice is treated at par with the Chief Justice and not for any other purpose, more particularly the pension. For the purposes of pension, the relevant provisions of the 1954 Act are extracted hereinabove and as observed hereinabove while computing the pension as per Rule 2 of Part I of the First Schedule of the 1954 Act, the service rendered by a Judge as an Acting Chief Justice only is required to be counted as a Chief Justice and his pension is required to be computed accordingly as a Chief Justice for the service rendered as an Acting Chief Justice. Therefore, the services rendered by the petitioner as an Acting Chief Justice, i.e., for a period of 14 months, is to be counted/calculated as that of the Chief Justice, namely, Rs.1,21,575/- per annum, or as the case may be. Rule 7 of Part I of the First Schedule cannot be read in isolation. Even Rule 7 specifically provides that for the purposes of this part – Part I, service as an Acting Chief Justice of a High Court shall be treated as though it were service rendered as Chief Justice of a High Court. Rule 2 and Rule 7 of Part I of the First Schedule of the 1954 Act are required to be read conjointly and if are read conjointly, in that case, while making the computation of pension under Rule 2 of Part I of the First Schedule, the service rendered as an Acting Chief Justice is required to be considered as a Chief Justice and accordingly his pension is required to be counted and for that period his pension is required to be computed as if he has rendered service as Chief Justice. 7. Now so far as the reliance placed upon the decision of this Court in the case of Syad Sarwar Ali(supra) by the learned counsel appearing on behalf of the respondent is concerned, learned counsel appearing on behalf of the petitioner is right to some extent that the said decision is distinguishable on facts. It is true that in the said case, the respondent – Judge retired as a puisne Judge and not as an Acting Chief Justice. However, in the said decision, it is specifically observed that the substantive portion of Rule 2 read with Rule 7 of the First Schedule deals with the calculation of the pension payable to a Judge during his judicial career and that in computing the pension, the time which he had spent as a Judge or Acting Chief Justice or Chief Justice is taken into consideration. It is further observed by this Court in the aforesaid decision that the rules containing First Schedule are conscious of the fact that the retiring incumbent may be a Judge or a Chief Justice or may have acted as an Acting Chief Justice for a period of time where for the purpose of calculating the quantum of pension, the period spent by a Judge as an Acting Chief Justice is taken into consideration for the purpose of fixing the ceiling. It is further observed that however, an Acting Chief Justice, who is one appointed under Article 223 of the Constitution is not equated with the Chief Justice appointed under Article 217 of the Constitution. The above observations clinch the issue. Even otherwise, we have considered the question posed independently and are of the opinion that the petitioner is not entitled to the pensionary benefits including the ceiling in the pension which may be available to a retired Chief Justice and as observed hereinabove, only that period of service rendered by him as an Acting Chief Justice, i.e., 14 months service as an Acting Chief Justice is required to be considered as service rendered as a Chief Justice for the purpose of computation of pension under Rule 2/as per Rule 2 of the Part I of the First Schedule of the 1954 Act. | 0[ds]6.2 Now so far as the reliance placed upon para 11 Part D of the Second Schedule of the Constitution and Articles 127, 221 and 223 of the Constitution by the learned Senior Advocate appearing on behalf of the petitioner is concerned, on conjoint reading of the aforesaid provisions, we are of the opinion that so long as a Judge who is performing his duties as an Acting Chief Justice appointed under Article 223 of the Constitution, shall be entitled to the salary and other perks as that of the Chief Justice. Meaning thereby, what is contemplated by the aforesaid provisions is only payment of salary during the tenure while functioning as Acting Chief Justice as that of a Chief Justice. Even by virtue of the provisions of the 1954 Act, it is for the limited purpose for computation of the salary that Acting Chief Justice is treated as ChiefNow so far as the submission on behalf of the petitioner, relying upon para 11 Part D of the Second Schedule that the ?Chief Justice? includes an ?Acting Chief Justice? and that such a Judge who is functioning as an Acting Chief Justice be paid the salary of a Chief Justice and for all practical purposes he has performed the duties of a Chief Justice and therefore he shall be paid the pensionary benefits admissible to a retired Chief Justice is concerned, it is required to be noted that there is a clear distinction between a Judge appointed as an Acting Chief Justice under Article 223 of the Constitution of India and a Chief Justice appointed under Article 217 of the Constitution. Considering Article 223 of the Constitution of India, it can be seen that a Judge of the High Court is appointed as an Acting Chief Justice under Article 223 of the Constitution for the purposes of the duties of the Chief Justice and the office of the Chief Justice remains vacant. In a case where the office of the Chief Justice of the High Court is vacant, the duties of the office of the Chief Justice will be performed by any other Judge as Acting Chief Justice. Therefore, only for the limited purpose of salary, such an Acting Chief Justice is treated at par with the Chief Justice and not for any other purpose, more particularly the pension. For the purposes of pension, the relevant provisions of the 1954 Act are extracted hereinabove and as observed hereinabove while computing the pension as per Rule 2 of Part I of the First Schedule of the 1954 Act, the service rendered by a Judge as an Acting Chief Justice only is required to be counted as a Chief Justice and his pension is required to be computed accordingly as a Chief Justice for the service rendered as an Acting Chief Justice. Therefore, the services rendered by the petitioner as an Acting Chief Justice, i.e., for a period of 14 months, is to be counted/calculated as that of the Chief Justice, namely, Rs.1,21,575/- per annum, or as the case may be. Rule 7 of Part I of the First Schedule cannot be read in isolation. Even Rule 7 specifically provides that for the purposes of this part – Part I, service as an Acting Chief Justice of a High Court shall be treated as though it were service rendered as Chief Justice of a High Court. Rule 2 and Rule 7 of Part I of the First Schedule of the 1954 Act are required to be read conjointly and if are read conjointly, in that case, while making the computation of pension under Rule 2 of Part I of the First Schedule, the service rendered as an Acting Chief Justice is required to be considered as a Chief Justice and accordingly his pension is required to be counted and for that period his pension is required to be computed as if he has rendered service as Chief Justice.Now so far as the reliance placed upon the decision of this Court in the case of Syad Sarwar Ali(supra) by the learned counsel appearing on behalf of the respondent is concerned, learned counsel appearing on behalf of the petitioner is right to some extent that the said decision is distinguishable on facts. It is true that in the said case, the respondent – Judge retired as a puisne Judge and not as an Acting Chief Justice. However, in the said decision, it is specifically observed that the substantive portion of Rule 2 read with Rule 7 of the First Schedule deals with the calculation of the pension payable to a Judge during his judicial career and that in computing the pension, the time which he had spent as a Judge or Acting Chief Justice or Chief Justice is taken into consideration. It is further observed by this Court in the aforesaid decision that the rules containing First Schedule are conscious of the fact that the retiring incumbent may be a Judge or a Chief Justice or may have acted as an Acting Chief Justice for a period of time where for the purpose of calculating the quantum of pension, the period spent by a Judge as an Acting Chief Justice is taken into consideration for the purpose of fixing the ceiling. It is further observed that however, an Acting Chief Justice, who is one appointed under Article 223 of the Constitution is not equated with the Chief Justice appointed under Article 217 of the Constitution. The above observations clinch the issue. Even otherwise, we have considered the question posed independently and are of the opinion that the petitioner is not entitled to the pensionary benefits including the ceiling in the pension which may be available to a retired Chief Justice and as observed hereinabove, only that period of service rendered by him as an Acting Chief Justice, i.e., 14 months service as an Acting Chief Justice is required to be considered as service rendered as a Chief Justice for the purpose of computation of pension under Rule 2/as per Rule 2 of the Part I of the First Schedule of the 1954 Act. | 0 | 4,764 | 1,086 | ### Instruction:
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and 223 of the Constitution by the learned Senior Advocate appearing on behalf of the petitioner is concerned, on conjoint reading of the aforesaid provisions, we are of the opinion that so long as a Judge who is performing his duties as an Acting Chief Justice appointed under Article 223 of the Constitution, shall be entitled to the salary and other perks as that of the Chief Justice. Meaning thereby, what is contemplated by the aforesaid provisions is only payment of salary during the tenure while functioning as Acting Chief Justice as that of a Chief Justice. Even by virtue of the provisions of the 1954 Act, it is for the limited purpose for computation of the salary that Acting Chief Justice is treated as Chief Justice. 6.3 Now so far as the submission on behalf of the petitioner, relying upon para 11 Part D of the Second Schedule that the ?Chief Justice? includes an ?Acting Chief Justice? and that such a Judge who is functioning as an Acting Chief Justice be paid the salary of a Chief Justice and for all practical purposes he has performed the duties of a Chief Justice and therefore he shall be paid the pensionary benefits admissible to a retired Chief Justice is concerned, it is required to be noted that there is a clear distinction between a Judge appointed as an Acting Chief Justice under Article 223 of the Constitution of India and a Chief Justice appointed under Article 217 of the Constitution. Considering Article 223 of the Constitution of India, it can be seen that a Judge of the High Court is appointed as an Acting Chief Justice under Article 223 of the Constitution for the purposes of the duties of the Chief Justice and the office of the Chief Justice remains vacant. In a case where the office of the Chief Justice of the High Court is vacant, the duties of the office of the Chief Justice will be performed by any other Judge as Acting Chief Justice. Therefore, only for the limited purpose of salary, such an Acting Chief Justice is treated at par with the Chief Justice and not for any other purpose, more particularly the pension. For the purposes of pension, the relevant provisions of the 1954 Act are extracted hereinabove and as observed hereinabove while computing the pension as per Rule 2 of Part I of the First Schedule of the 1954 Act, the service rendered by a Judge as an Acting Chief Justice only is required to be counted as a Chief Justice and his pension is required to be computed accordingly as a Chief Justice for the service rendered as an Acting Chief Justice. Therefore, the services rendered by the petitioner as an Acting Chief Justice, i.e., for a period of 14 months, is to be counted/calculated as that of the Chief Justice, namely, Rs.1,21,575/- per annum, or as the case may be. Rule 7 of Part I of the First Schedule cannot be read in isolation. Even Rule 7 specifically provides that for the purposes of this part – Part I, service as an Acting Chief Justice of a High Court shall be treated as though it were service rendered as Chief Justice of a High Court. Rule 2 and Rule 7 of Part I of the First Schedule of the 1954 Act are required to be read conjointly and if are read conjointly, in that case, while making the computation of pension under Rule 2 of Part I of the First Schedule, the service rendered as an Acting Chief Justice is required to be considered as a Chief Justice and accordingly his pension is required to be counted and for that period his pension is required to be computed as if he has rendered service as Chief Justice. 7. Now so far as the reliance placed upon the decision of this Court in the case of Syad Sarwar Ali(supra) by the learned counsel appearing on behalf of the respondent is concerned, learned counsel appearing on behalf of the petitioner is right to some extent that the said decision is distinguishable on facts. It is true that in the said case, the respondent – Judge retired as a puisne Judge and not as an Acting Chief Justice. However, in the said decision, it is specifically observed that the substantive portion of Rule 2 read with Rule 7 of the First Schedule deals with the calculation of the pension payable to a Judge during his judicial career and that in computing the pension, the time which he had spent as a Judge or Acting Chief Justice or Chief Justice is taken into consideration. It is further observed by this Court in the aforesaid decision that the rules containing First Schedule are conscious of the fact that the retiring incumbent may be a Judge or a Chief Justice or may have acted as an Acting Chief Justice for a period of time where for the purpose of calculating the quantum of pension, the period spent by a Judge as an Acting Chief Justice is taken into consideration for the purpose of fixing the ceiling. It is further observed that however, an Acting Chief Justice, who is one appointed under Article 223 of the Constitution is not equated with the Chief Justice appointed under Article 217 of the Constitution. The above observations clinch the issue. Even otherwise, we have considered the question posed independently and are of the opinion that the petitioner is not entitled to the pensionary benefits including the ceiling in the pension which may be available to a retired Chief Justice and as observed hereinabove, only that period of service rendered by him as an Acting Chief Justice, i.e., 14 months service as an Acting Chief Justice is required to be considered as service rendered as a Chief Justice for the purpose of computation of pension under Rule 2/as per Rule 2 of the Part I of the First Schedule of the 1954 Act.
### Response:
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### Explanation:
Constitution and Articles 127, 221 and 223 of the Constitution by the learned Senior Advocate appearing on behalf of the petitioner is concerned, on conjoint reading of the aforesaid provisions, we are of the opinion that so long as a Judge who is performing his duties as an Acting Chief Justice appointed under Article 223 of the Constitution, shall be entitled to the salary and other perks as that of the Chief Justice. Meaning thereby, what is contemplated by the aforesaid provisions is only payment of salary during the tenure while functioning as Acting Chief Justice as that of a Chief Justice. Even by virtue of the provisions of the 1954 Act, it is for the limited purpose for computation of the salary that Acting Chief Justice is treated as ChiefNow so far as the submission on behalf of the petitioner, relying upon para 11 Part D of the Second Schedule that the ?Chief Justice? includes an ?Acting Chief Justice? and that such a Judge who is functioning as an Acting Chief Justice be paid the salary of a Chief Justice and for all practical purposes he has performed the duties of a Chief Justice and therefore he shall be paid the pensionary benefits admissible to a retired Chief Justice is concerned, it is required to be noted that there is a clear distinction between a Judge appointed as an Acting Chief Justice under Article 223 of the Constitution of India and a Chief Justice appointed under Article 217 of the Constitution. Considering Article 223 of the Constitution of India, it can be seen that a Judge of the High Court is appointed as an Acting Chief Justice under Article 223 of the Constitution for the purposes of the duties of the Chief Justice and the office of the Chief Justice remains vacant. In a case where the office of the Chief Justice of the High Court is vacant, the duties of the office of the Chief Justice will be performed by any other Judge as Acting Chief Justice. Therefore, only for the limited purpose of salary, such an Acting Chief Justice is treated at par with the Chief Justice and not for any other purpose, more particularly the pension. For the purposes of pension, the relevant provisions of the 1954 Act are extracted hereinabove and as observed hereinabove while computing the pension as per Rule 2 of Part I of the First Schedule of the 1954 Act, the service rendered by a Judge as an Acting Chief Justice only is required to be counted as a Chief Justice and his pension is required to be computed accordingly as a Chief Justice for the service rendered as an Acting Chief Justice. Therefore, the services rendered by the petitioner as an Acting Chief Justice, i.e., for a period of 14 months, is to be counted/calculated as that of the Chief Justice, namely, Rs.1,21,575/- per annum, or as the case may be. Rule 7 of Part I of the First Schedule cannot be read in isolation. Even Rule 7 specifically provides that for the purposes of this part – Part I, service as an Acting Chief Justice of a High Court shall be treated as though it were service rendered as Chief Justice of a High Court. Rule 2 and Rule 7 of Part I of the First Schedule of the 1954 Act are required to be read conjointly and if are read conjointly, in that case, while making the computation of pension under Rule 2 of Part I of the First Schedule, the service rendered as an Acting Chief Justice is required to be considered as a Chief Justice and accordingly his pension is required to be counted and for that period his pension is required to be computed as if he has rendered service as Chief Justice.Now so far as the reliance placed upon the decision of this Court in the case of Syad Sarwar Ali(supra) by the learned counsel appearing on behalf of the respondent is concerned, learned counsel appearing on behalf of the petitioner is right to some extent that the said decision is distinguishable on facts. It is true that in the said case, the respondent – Judge retired as a puisne Judge and not as an Acting Chief Justice. However, in the said decision, it is specifically observed that the substantive portion of Rule 2 read with Rule 7 of the First Schedule deals with the calculation of the pension payable to a Judge during his judicial career and that in computing the pension, the time which he had spent as a Judge or Acting Chief Justice or Chief Justice is taken into consideration. It is further observed by this Court in the aforesaid decision that the rules containing First Schedule are conscious of the fact that the retiring incumbent may be a Judge or a Chief Justice or may have acted as an Acting Chief Justice for a period of time where for the purpose of calculating the quantum of pension, the period spent by a Judge as an Acting Chief Justice is taken into consideration for the purpose of fixing the ceiling. It is further observed that however, an Acting Chief Justice, who is one appointed under Article 223 of the Constitution is not equated with the Chief Justice appointed under Article 217 of the Constitution. The above observations clinch the issue. Even otherwise, we have considered the question posed independently and are of the opinion that the petitioner is not entitled to the pensionary benefits including the ceiling in the pension which may be available to a retired Chief Justice and as observed hereinabove, only that period of service rendered by him as an Acting Chief Justice, i.e., 14 months service as an Acting Chief Justice is required to be considered as service rendered as a Chief Justice for the purpose of computation of pension under Rule 2/as per Rule 2 of the Part I of the First Schedule of the 1954 Act.
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Commnr. Of Central Excise, Surat-I Vs. M/S. Favourite Industries | In Kohinoor Elastics (P) Ltd. v. Commissioner of Central Excise, Indore, (2005) 7 SCC 528 , this Court has held: "7. When the wordings of the notifications are clear and unambiguous they must be given effect to. By a strained reasoning benefit cannot be given when it is clearly not available." 28. In Compack (P) Ltd. v. Commissioner of Central Excise, Vadodara, (2005) 8 SCC 300 , this Court has observed thus: "20. Bhalla Enterprises laid down a proposition that notification has to be construed on the basis of the language used. Rukmani Pakkwell Traders is an authority for the same proposition as also that the wordings of some other notification are of no benefit in construing a particular notification. The notification does not state that exemption cannot be granted in a case where all the inputs for manufacture of containers would be base paper or paperboard. In manufacture of the containers some other inputs are likely to be used for which MODVAT credit facility has been availed of. Such a construction, as has been suggested by the learned counsel for the respondents, would amount to addition of the words "only out of" or "purely out of" the base paper and cannot be countenanced. The notification has to be construed in terms of the language used therein. It is well settled that unless literal meaning given to a document leads to anomaly or absurdity, the golden rule of literal interpretation shall be adhered to." 29. In Commissioner of Central Excise, Chandigarh-I v. Mahaan Dairies, (2004) 11 SCC 798 , this Court has held: "8. It is settled law that in order to claim benefit of a notification, a party must strictly comply with the terms of the notification. If on wording of the notification the benefit is not available then by stretching the words of the notification or by adding words to the notification benefit cannot be conferred. The Tribunal has based its decision on a decision delivered by it in Rukmani Pakkwell Traders v. CCE. We have already overruled the decision in that case. In this case also we hold that the decision of the Tribunal is unsustainable. It is accordingly set aside." 30. In Commissioner of Customs (Preventive), Gujarat v. Reliance Petroleum Limited, (2008) 7 SCC 220 , this Court has held: "30. We are not oblivious of the proposition of law that an exemption notification should be construed directly but it is also well settled that interpretation of an exemption notification would depend upon the nature and extent thereof. The terminologies used in the notification would have an important role to play. Where the exemption notification ex facie applies, there is no reason as to why the purport thereof would be limited by giving a strict construction thereto.31. The comparison made by the learned Solicitor General that mobility of a person would depend upon his personal fitness and not when he is placed on a wheelchair, in our opinion, is not apposite. The purpose of grant of exemption is different. The object for grant of notification shall be considered in a broad based manner. The wordings used therein have to be given their natural meaning. The purpose must be allowed to be achieved. The words "all types of materials" should be construed widely." 31. Moreover, a liberal construction requires to be given to a beneficial notification. This Court in Commissioner of Customs (Preventive), Mumbai v. M. Ambalal and Company, (2011) 2 SCC 74 , (in which one of us was the party) has observed that the beneficial notification providing the levy of duty at a concessional rate should be given a liberal interpretation: "16. It is settled law that the notification has to be read as a whole. If any of the conditions laid down in the notification is not fulfilled, the party is not entitled to the benefit of that notification. The rule regarding exemptions is that exemptions should generally be strictly interpreted but beneficial exemptions having their purpose as encouragement or promotion of certain activities should be liberally interpreted. This composite rule is not stated in any particular judgment in so many words. In fact, majority of judgments emphasise that exemptions are to be strictly interpreted while some of them insist that exemptions in fiscal statutes are to be liberally interpreted giving an apparent impression that they are contradictory to each other. But this is only apparent. A close scrutiny will reveal that there is no real contradiction amongst the judgments at all. The synthesis of the views is quite clearly that the general rule is strict interpretation while special rule in the case of beneficial and promotional exemption is liberal interpretation. The two go very well with each other because they relate to two different sets of circumstances." 32. In Commissioner of Sales Tax v. Industrial Coal Enterprises, (1999) 2 SCC 607 , this Court has observed thus: "11. In CIT v. Straw Board Mfg. Co. Ltd. this Court held that in taxing statutes, provision for concessional rate of tax should be liberally construed. So also in Bajaj Tempo Ltd. v. CIT it was held that provision granting incentive for promoting economic growth and development in taxing statutes should be liberally construed and restriction placed on it by way of exception should be construed in a reasonable and purposive manner so as to advance the objective of the provision." 33. In Commissioner of Central Excise, Shillong v. North-Eastern Tobacco Co. Ltd., (2003) 1 SCC 161 , this Court has observed thus: "10. The other important principle of interpreting an exemption notification is that as far as possible liberal interpretation should be imparted to the language thereof, provided no violence is done to the language employed. See State Level Committee v. Morgardshammar India Ltd." 34. In our view, the Tribunal has rightly understood the purpose and the language employed in Notification no.8/97-CE and the EXIM Policy 1997-2002. Therefore, we do not see any legal infirmity in the judgment and order so passed by the Tribunal. | 0[ds]The Notification also makes it clear with regard to the nature or type of goods that the 100% EOU should be manufacturing in its industrial unit. It says that the exempted goods should be in a nature or type of goods which are, normally, produced/manufactured outside India and, but for any reason, they are imported to India. That only means, there must be a similarity between the goods manufactured by a 100% EOU with that of the goods produced or manufactured outside the country but if it is imported into this country. The Notification provides two conditions in order to avail the benefit provided under the Notification. They are conjoint and not disjoint. Firstly, the exemption is available only, if the goods are produced or manufactured in a 100% EOU or FTA or EHTP unit or STP unit and, secondly, they must be allowed to be sold as per EXIM PolicyProviso is appended to the Notification. A reference to the same may not be necessary for the purpose of the disposal of thisShri. K. Swami, learned counsel for the revenue strenuously contends that the assessee has purchased raw material/finished goods, for its manufacturing activity to produce or manufacture the finished products, from a 100% EOU which had imported the raw material which are exempted from the payment of duty and when it affects the sale of such raw material/finished goods manufactured in its industry to another 100% EOU, then, in the hands of the said EOU, it becomes an imported raw material/finished goods. In this regard, he submits that since the language employed in the Notificationdated 1.3.1997 is "raw material produced or manufactured in India", only such raw material, when used for the production or manufacturing of the finished goods which are, ultimately, sold in the DTA, are eligible for exemption and, therefore, the assessee cannot take the benefit of the Notification no.We are afraid that we can accept the argument canvassed by Shri. Swami, in the light of the unambiguous language employed in the Notification no.There is no ambiguity, whatsoever, in the Notification issued by the Central Government. The Notification speaks of finished goods produced or manufactured by a 100% EOU and if it is sold in a DTA, the said EOU can take the benefit of the Notification no.If for any reason, we accept the submission of Shri K.Swami, learned counsel for the Revenue, then we will be adding something into the notification and, in our opinion, the same is impermissible.25. The notification requires to be interpreted in the light of the words employed by it and not on any other basis. There cannot be any addition or subtraction from the notification for the reason the exemption notification requires to be strictly construed by the Courts. The wordings of the exemption notification have to be given its natural meaning, when the wordings are simple, clear and unambiguous.In our view, the Tribunal has rightly understood the purpose and the language employed in Notificationand the EXIM PolicyTherefore, we do not see any legal infirmity in the judgment and order so passed by the Tribunal. | 0 | 6,676 | 578 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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In Kohinoor Elastics (P) Ltd. v. Commissioner of Central Excise, Indore, (2005) 7 SCC 528 , this Court has held: "7. When the wordings of the notifications are clear and unambiguous they must be given effect to. By a strained reasoning benefit cannot be given when it is clearly not available." 28. In Compack (P) Ltd. v. Commissioner of Central Excise, Vadodara, (2005) 8 SCC 300 , this Court has observed thus: "20. Bhalla Enterprises laid down a proposition that notification has to be construed on the basis of the language used. Rukmani Pakkwell Traders is an authority for the same proposition as also that the wordings of some other notification are of no benefit in construing a particular notification. The notification does not state that exemption cannot be granted in a case where all the inputs for manufacture of containers would be base paper or paperboard. In manufacture of the containers some other inputs are likely to be used for which MODVAT credit facility has been availed of. Such a construction, as has been suggested by the learned counsel for the respondents, would amount to addition of the words "only out of" or "purely out of" the base paper and cannot be countenanced. The notification has to be construed in terms of the language used therein. It is well settled that unless literal meaning given to a document leads to anomaly or absurdity, the golden rule of literal interpretation shall be adhered to." 29. In Commissioner of Central Excise, Chandigarh-I v. Mahaan Dairies, (2004) 11 SCC 798 , this Court has held: "8. It is settled law that in order to claim benefit of a notification, a party must strictly comply with the terms of the notification. If on wording of the notification the benefit is not available then by stretching the words of the notification or by adding words to the notification benefit cannot be conferred. The Tribunal has based its decision on a decision delivered by it in Rukmani Pakkwell Traders v. CCE. We have already overruled the decision in that case. In this case also we hold that the decision of the Tribunal is unsustainable. It is accordingly set aside." 30. In Commissioner of Customs (Preventive), Gujarat v. Reliance Petroleum Limited, (2008) 7 SCC 220 , this Court has held: "30. We are not oblivious of the proposition of law that an exemption notification should be construed directly but it is also well settled that interpretation of an exemption notification would depend upon the nature and extent thereof. The terminologies used in the notification would have an important role to play. Where the exemption notification ex facie applies, there is no reason as to why the purport thereof would be limited by giving a strict construction thereto.31. The comparison made by the learned Solicitor General that mobility of a person would depend upon his personal fitness and not when he is placed on a wheelchair, in our opinion, is not apposite. The purpose of grant of exemption is different. The object for grant of notification shall be considered in a broad based manner. The wordings used therein have to be given their natural meaning. The purpose must be allowed to be achieved. The words "all types of materials" should be construed widely." 31. Moreover, a liberal construction requires to be given to a beneficial notification. This Court in Commissioner of Customs (Preventive), Mumbai v. M. Ambalal and Company, (2011) 2 SCC 74 , (in which one of us was the party) has observed that the beneficial notification providing the levy of duty at a concessional rate should be given a liberal interpretation: "16. It is settled law that the notification has to be read as a whole. If any of the conditions laid down in the notification is not fulfilled, the party is not entitled to the benefit of that notification. The rule regarding exemptions is that exemptions should generally be strictly interpreted but beneficial exemptions having their purpose as encouragement or promotion of certain activities should be liberally interpreted. This composite rule is not stated in any particular judgment in so many words. In fact, majority of judgments emphasise that exemptions are to be strictly interpreted while some of them insist that exemptions in fiscal statutes are to be liberally interpreted giving an apparent impression that they are contradictory to each other. But this is only apparent. A close scrutiny will reveal that there is no real contradiction amongst the judgments at all. The synthesis of the views is quite clearly that the general rule is strict interpretation while special rule in the case of beneficial and promotional exemption is liberal interpretation. The two go very well with each other because they relate to two different sets of circumstances." 32. In Commissioner of Sales Tax v. Industrial Coal Enterprises, (1999) 2 SCC 607 , this Court has observed thus: "11. In CIT v. Straw Board Mfg. Co. Ltd. this Court held that in taxing statutes, provision for concessional rate of tax should be liberally construed. So also in Bajaj Tempo Ltd. v. CIT it was held that provision granting incentive for promoting economic growth and development in taxing statutes should be liberally construed and restriction placed on it by way of exception should be construed in a reasonable and purposive manner so as to advance the objective of the provision." 33. In Commissioner of Central Excise, Shillong v. North-Eastern Tobacco Co. Ltd., (2003) 1 SCC 161 , this Court has observed thus: "10. The other important principle of interpreting an exemption notification is that as far as possible liberal interpretation should be imparted to the language thereof, provided no violence is done to the language employed. See State Level Committee v. Morgardshammar India Ltd." 34. In our view, the Tribunal has rightly understood the purpose and the language employed in Notification no.8/97-CE and the EXIM Policy 1997-2002. Therefore, we do not see any legal infirmity in the judgment and order so passed by the Tribunal.
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0
### Explanation:
The Notification also makes it clear with regard to the nature or type of goods that the 100% EOU should be manufacturing in its industrial unit. It says that the exempted goods should be in a nature or type of goods which are, normally, produced/manufactured outside India and, but for any reason, they are imported to India. That only means, there must be a similarity between the goods manufactured by a 100% EOU with that of the goods produced or manufactured outside the country but if it is imported into this country. The Notification provides two conditions in order to avail the benefit provided under the Notification. They are conjoint and not disjoint. Firstly, the exemption is available only, if the goods are produced or manufactured in a 100% EOU or FTA or EHTP unit or STP unit and, secondly, they must be allowed to be sold as per EXIM PolicyProviso is appended to the Notification. A reference to the same may not be necessary for the purpose of the disposal of thisShri. K. Swami, learned counsel for the revenue strenuously contends that the assessee has purchased raw material/finished goods, for its manufacturing activity to produce or manufacture the finished products, from a 100% EOU which had imported the raw material which are exempted from the payment of duty and when it affects the sale of such raw material/finished goods manufactured in its industry to another 100% EOU, then, in the hands of the said EOU, it becomes an imported raw material/finished goods. In this regard, he submits that since the language employed in the Notificationdated 1.3.1997 is "raw material produced or manufactured in India", only such raw material, when used for the production or manufacturing of the finished goods which are, ultimately, sold in the DTA, are eligible for exemption and, therefore, the assessee cannot take the benefit of the Notification no.We are afraid that we can accept the argument canvassed by Shri. Swami, in the light of the unambiguous language employed in the Notification no.There is no ambiguity, whatsoever, in the Notification issued by the Central Government. The Notification speaks of finished goods produced or manufactured by a 100% EOU and if it is sold in a DTA, the said EOU can take the benefit of the Notification no.If for any reason, we accept the submission of Shri K.Swami, learned counsel for the Revenue, then we will be adding something into the notification and, in our opinion, the same is impermissible.25. The notification requires to be interpreted in the light of the words employed by it and not on any other basis. There cannot be any addition or subtraction from the notification for the reason the exemption notification requires to be strictly construed by the Courts. The wordings of the exemption notification have to be given its natural meaning, when the wordings are simple, clear and unambiguous.In our view, the Tribunal has rightly understood the purpose and the language employed in Notificationand the EXIM PolicyTherefore, we do not see any legal infirmity in the judgment and order so passed by the Tribunal.
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Corporation Of The City Of Bangalore Vs. B.T. Kampanna | stated here that the Mysore Tenants (Temporary Protection from Eviction) Act, 1961 ceased to be in force in March, 1966. That is perhaps why the respondent made an application for amendment of the written statement on 2 February 1973. The respondent contended relying on section 133 of the Karnataka Land Reforms Act, 1961 that the. suit should be stayed by the civil court and should be referred to the Tribunal for decision. Section 112(B)(b) of the Karnataka Land Reforms Act, 1961 confers power on t he Tribunal to decide inter alia whether a person is a tenant or not. The respondent contended that he was a person who was deemed to be a tenant.The appellant opposed the application for stay of the suit by the civil court and referring to the Tribunal for decision under the Karnataka Land Reforms Act, 1961. The trial Court held that the land belonging to the appellant was exempted from the application of the provisions of the Land Reforms Act. The trial Court dismissed the application of the respondent.5. The respondent presented a revision petition t0 the High Court. The High Court reversed the decision of the trial Court and directed the trial Court to refer such of the issues which are required to be. decided by the Tribunal.6. Counsel for the respondent contended that the respondent is a tenant within the meaning of the word "tenant" defined in section 2(34) of the Karnataka Land Reforms Act, 1961. "Tenant" is defined to mean an agriculturist who cultivates personally the land he holds on lease from a landlord and includes (i) a person w ho is deemed to be a tenant under section 4 of the Karnataka Land Reforms Act, 1961, Section of the Karnataka Land Reforms Act, 1961 states that a person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not (a) a member of the owners family, or (b) a servant or a hired labourer on wages, or (c) a mortgage in possession I t was, therefore, said that the respondent could raise the con- tention whether the respondent was a tenant or not. It was next contended that section 8 of the Karnataka Land Reforms Act, 1961 speaks of rent and rent is referable to tenant and therefore a dispute as to tenancy would be within the ambit of the Karnataka Land Reforms Act, 1961.Section 107 of the Karnataka Land Reforms Act, 1961 states that subject to the provisions of section 110 nothing in this Act, except section 8 shall apply to lands, inter alia (iii) belonging to or held on lease or from a local authority. There is no dispute that the land was given on lease by the local authority. There is also no dispute that the land belongs to the local authority. There is also no dispute that the lease was determined by efflux of time. The question whether the respondent is a tenant or deemed to be a tenant does not at all arise because the tenancy came to an end. The respondent thereafter was a trespasser.7. Section 107 of the Karnataka Land Reforms Act, 1961 makes it quite clear that the only provision which applies, inter alia, to lands belonging to or hold on lease or from a local authority is section 8. No other section of the Land Reforms Act applies to these lands. Section 8 of the Karnataka Land Reforms Act, 1961 deals with rent. The suit in the present case was not for recovery of rent. The suit is for recovery of possession and for damages, for unauthorised occupation of the respondent. Section 2 of the Karnataka Land Reforms Act, 1961 is not applicable. Therefore, no question can be referred for determination by the Tribunal under section 133.8. The Mysore Tenants (Temporary Protection from Eviction) Act, 1961 came into effect on 13 December, 1961. The Mysore Tenants (Temporary Protection from Eviction) Act, 1961 remained in force till the month of March, 1966. The respondent could not draw any support from that Act for protection against eviction. The land in question was outside the applicability of the Mysore Tenants (Temporary Protection from Eviction) Act, 1961. Further the Act ceased to be in operation in 1966 and no question could be referred for determination as to whether the respondent was a tenant under the Mysore Tenants (Temporary-Protection from Eviction) Act, 1961 or not. The trial Court in the present case rightly said that it could not be said that there was any dispute as to tenancy.The respondent had filed a suit where he claimed to remain in possession. The suit of the respondent was dismissed. The appellant all along contended that the lease dated 14 September 1963 for a period of 5 years expired by efflux of time. The appellant claimed possession on the ground Of unauthorised occupation and claimed damages against the respondent, who was a trespasser.9. The High Court was clearly in error in referring to the Tribunal under the Karnataka Land Reforms Act 1961 determination of the plea taken by the respondent that he was protected by the Mysore Tenants (Temporary Protection from Eviction) Act 1961. Counsel for the respondent did not support the judgment on that ground.10. Counsel for the respondent contended that section 133 of the Karnataka Land Reforms Act 196 1 excludes jurisdiction of Civil court in suits for possession where the defendant claims to be a tenant. The plea of the respondent is utterly unsound. Section 133 of the Karnataka Land Reforms Act 1961 cannot apply to lands which are held by a person on lease from the local authority or where the lease had expired and the local authority sues for possession on the ground that there is unauthorised occupation. No provision of the Karnataka Land Reforms Act can be relied upon to contend that there should be protection against recovery of possession by the local authority.11. | 1[ds]The High Court was clearly in error in referring to the Tribunal under the Karnataka Land Reforms Act 1961 determination of the plea taken by the respondent that he was protected by the Mysore Tenants (Temporary Protection from Eviction) Act 1961. Counsel for the respondent did not support the judgment on thatfor the respondent contended that section 133 of the Karnataka Land Reforms Act 196 1 excludes jurisdiction of Civil court in suits for possession where the defendant claims to be a tenant. The plea of the respondent is utterly unsound. Section 133 of the Karnataka Land Reforms Act 1961 cannot apply to lands which are held by a person on lease from the local authority or where the lease had expired and the local authority sues for possession on the ground that there is unauthorised occupation. No provision of the Karnataka Land Reforms Act can be relied upon to contend that there should be protection against recovery of possession by the localt was, therefore, said that the respondent could raise the contention whether the respondent was a tenant or not. It was next contended that section 8 ofthe Karnataka Land Reforms Act, 1961 speaks of rent and rent is referable to tenant and therefore a dispute as to tenancy would be within the ambit ofthe Karnataka Land Reforms Act, 1961.Section 107 ofthe Karnataka Land Reforms Act, 1961 states that subject to the provisions of section 110 nothing in this Act, except section 8 shall apply to lands, inter alia (iii) belonging to or held on lease or from a local authority. There is no dispute that the land was given on lease by the local authority. There is also no dispute that the land belongs to the local authority. There is also no dispute that the lease was determined by efflux of time.The question whether the respondent is a tenant or deemed to be a tenant does not at all arise because the tenancy came to an end. The respondent thereafter was aof the Karnataka Land ReformsAct, 1961 makes it quite clear that the only provision which applies, inter alia, to lands belonging to or hold on lease or from a local authority is section 8. No other section of the Land Reforms Act applies to these lands. Section 8 ofthe Karnataka Land Reforms Act, 1961 deals with rent. The suit in the present case was not for recovery of rent. The suit is for recovery of possession and for damages, for unauthorised occupation of the respondent. Section 2 ofthe Karnataka Land Reforms Act, 1961 is not applicable. Therefore, no question can be referred for determination by the Tribunal under section 133. | 1 | 1,500 | 482 | ### 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:
stated here that the Mysore Tenants (Temporary Protection from Eviction) Act, 1961 ceased to be in force in March, 1966. That is perhaps why the respondent made an application for amendment of the written statement on 2 February 1973. The respondent contended relying on section 133 of the Karnataka Land Reforms Act, 1961 that the. suit should be stayed by the civil court and should be referred to the Tribunal for decision. Section 112(B)(b) of the Karnataka Land Reforms Act, 1961 confers power on t he Tribunal to decide inter alia whether a person is a tenant or not. The respondent contended that he was a person who was deemed to be a tenant.The appellant opposed the application for stay of the suit by the civil court and referring to the Tribunal for decision under the Karnataka Land Reforms Act, 1961. The trial Court held that the land belonging to the appellant was exempted from the application of the provisions of the Land Reforms Act. The trial Court dismissed the application of the respondent.5. The respondent presented a revision petition t0 the High Court. The High Court reversed the decision of the trial Court and directed the trial Court to refer such of the issues which are required to be. decided by the Tribunal.6. Counsel for the respondent contended that the respondent is a tenant within the meaning of the word "tenant" defined in section 2(34) of the Karnataka Land Reforms Act, 1961. "Tenant" is defined to mean an agriculturist who cultivates personally the land he holds on lease from a landlord and includes (i) a person w ho is deemed to be a tenant under section 4 of the Karnataka Land Reforms Act, 1961, Section of the Karnataka Land Reforms Act, 1961 states that a person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not (a) a member of the owners family, or (b) a servant or a hired labourer on wages, or (c) a mortgage in possession I t was, therefore, said that the respondent could raise the con- tention whether the respondent was a tenant or not. It was next contended that section 8 of the Karnataka Land Reforms Act, 1961 speaks of rent and rent is referable to tenant and therefore a dispute as to tenancy would be within the ambit of the Karnataka Land Reforms Act, 1961.Section 107 of the Karnataka Land Reforms Act, 1961 states that subject to the provisions of section 110 nothing in this Act, except section 8 shall apply to lands, inter alia (iii) belonging to or held on lease or from a local authority. There is no dispute that the land was given on lease by the local authority. There is also no dispute that the land belongs to the local authority. There is also no dispute that the lease was determined by efflux of time. The question whether the respondent is a tenant or deemed to be a tenant does not at all arise because the tenancy came to an end. The respondent thereafter was a trespasser.7. Section 107 of the Karnataka Land Reforms Act, 1961 makes it quite clear that the only provision which applies, inter alia, to lands belonging to or hold on lease or from a local authority is section 8. No other section of the Land Reforms Act applies to these lands. Section 8 of the Karnataka Land Reforms Act, 1961 deals with rent. The suit in the present case was not for recovery of rent. The suit is for recovery of possession and for damages, for unauthorised occupation of the respondent. Section 2 of the Karnataka Land Reforms Act, 1961 is not applicable. Therefore, no question can be referred for determination by the Tribunal under section 133.8. The Mysore Tenants (Temporary Protection from Eviction) Act, 1961 came into effect on 13 December, 1961. The Mysore Tenants (Temporary Protection from Eviction) Act, 1961 remained in force till the month of March, 1966. The respondent could not draw any support from that Act for protection against eviction. The land in question was outside the applicability of the Mysore Tenants (Temporary Protection from Eviction) Act, 1961. Further the Act ceased to be in operation in 1966 and no question could be referred for determination as to whether the respondent was a tenant under the Mysore Tenants (Temporary-Protection from Eviction) Act, 1961 or not. The trial Court in the present case rightly said that it could not be said that there was any dispute as to tenancy.The respondent had filed a suit where he claimed to remain in possession. The suit of the respondent was dismissed. The appellant all along contended that the lease dated 14 September 1963 for a period of 5 years expired by efflux of time. The appellant claimed possession on the ground Of unauthorised occupation and claimed damages against the respondent, who was a trespasser.9. The High Court was clearly in error in referring to the Tribunal under the Karnataka Land Reforms Act 1961 determination of the plea taken by the respondent that he was protected by the Mysore Tenants (Temporary Protection from Eviction) Act 1961. Counsel for the respondent did not support the judgment on that ground.10. Counsel for the respondent contended that section 133 of the Karnataka Land Reforms Act 196 1 excludes jurisdiction of Civil court in suits for possession where the defendant claims to be a tenant. The plea of the respondent is utterly unsound. Section 133 of the Karnataka Land Reforms Act 1961 cannot apply to lands which are held by a person on lease from the local authority or where the lease had expired and the local authority sues for possession on the ground that there is unauthorised occupation. No provision of the Karnataka Land Reforms Act can be relied upon to contend that there should be protection against recovery of possession by the local authority.11.
### Response:
1
### Explanation:
The High Court was clearly in error in referring to the Tribunal under the Karnataka Land Reforms Act 1961 determination of the plea taken by the respondent that he was protected by the Mysore Tenants (Temporary Protection from Eviction) Act 1961. Counsel for the respondent did not support the judgment on thatfor the respondent contended that section 133 of the Karnataka Land Reforms Act 196 1 excludes jurisdiction of Civil court in suits for possession where the defendant claims to be a tenant. The plea of the respondent is utterly unsound. Section 133 of the Karnataka Land Reforms Act 1961 cannot apply to lands which are held by a person on lease from the local authority or where the lease had expired and the local authority sues for possession on the ground that there is unauthorised occupation. No provision of the Karnataka Land Reforms Act can be relied upon to contend that there should be protection against recovery of possession by the localt was, therefore, said that the respondent could raise the contention whether the respondent was a tenant or not. It was next contended that section 8 ofthe Karnataka Land Reforms Act, 1961 speaks of rent and rent is referable to tenant and therefore a dispute as to tenancy would be within the ambit ofthe Karnataka Land Reforms Act, 1961.Section 107 ofthe Karnataka Land Reforms Act, 1961 states that subject to the provisions of section 110 nothing in this Act, except section 8 shall apply to lands, inter alia (iii) belonging to or held on lease or from a local authority. There is no dispute that the land was given on lease by the local authority. There is also no dispute that the land belongs to the local authority. There is also no dispute that the lease was determined by efflux of time.The question whether the respondent is a tenant or deemed to be a tenant does not at all arise because the tenancy came to an end. The respondent thereafter was aof the Karnataka Land ReformsAct, 1961 makes it quite clear that the only provision which applies, inter alia, to lands belonging to or hold on lease or from a local authority is section 8. No other section of the Land Reforms Act applies to these lands. Section 8 ofthe Karnataka Land Reforms Act, 1961 deals with rent. The suit in the present case was not for recovery of rent. The suit is for recovery of possession and for damages, for unauthorised occupation of the respondent. Section 2 ofthe Karnataka Land Reforms Act, 1961 is not applicable. Therefore, no question can be referred for determination by the Tribunal under section 133.
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State of Rajasthan Vs. M/S. Nav Bharat Construction Company | . In this case the claim had been for Rs. 12,93,260. The Arbitrator awarded as follows: “M/s. Unique Builders Ltd. the claimant is entitled to receive from Paradeep Port Trust a sum of Rs. 8,51,315 with interest..” It was contended in that case that claims 2 and 7 (therein) could not have been awarded. This Court held that as the award was a lump sum award and as only Rs. 8,51,315 had been awarded against a claim of Rs. 12,93,260 it was not possible to say whether any amounts had been awarded against claims 2 and/or 7. Relying on this Mr. Lohadia submitted that even in this case it cannot be said whether any amounts have been awarded against claims alleged to be covered by the contract. We are unable to accept this submission. In this case the award itself states that the award of Rs. 29,96,060/- is against claims 1 to 39, except claim No. 30. Therefore this award is in respect of claims covered by the contract and to that extent the Umpire has misconducted himself. Even otherwise the claim for damages is not in a sum of Rs. 27.50 lacs as claimed. Claims 27 and 28 which deal with damages are for Rs. 3,07,038/- and Rs. 1,58,904.85. The other claims, included in the figure of Rs. 27.50 given to this Court appear to be claims at enhanced rates for the contracted work done during the extended period. Mr. Lohadia denied that Respondents had agreed to do work during the extended period at the contracted rate. Thus at this stage, unlike in Paradip Port Trust’s case (supra), it does appear on the face of the record that higher rates for items covered by the contract have been awarded. 25. As regards Claim No. 2 Mr. Luhadia fairly admitted that Clause 5.11(iii) of the Contract requires chiseling of stones on all sides. He however submitted that the rates given in Schedule G were only for chiseling of stones on one side. He submitted that this was clear from Note 1 under Schedule G which stated that Schedule G was based on B.S.R. 1975. He submitted that B.S.R. 1975 showed that such rates were only for chiseling stones on one side. He submitted that when the stone has to be chiseled on all sides the rates given in B.S.R. 1975 were to be applied. He submitted that claim No. 2 was based on those rates. We are unable to accept this submission of Mr. Luhadia. The Contract is very specific. The work specified in the Contract has to be done at the rates specified in Schedule ‘G‘. Even though Schedule G may be based on B.S.R. 1975 it is not exactly as B.S.R. 1975. Where in respect of a work specified in the contract the rate has been given in Schedule G that work could only be done at that rate. Works specified in the Contract does not become extra work. It is only in respect of extra work that rates specified in B.S.R. 1975 can be applied. To us it is clear that the claim No. 2 is contrary to the terms of the Contract. It is barred by Clauses 57, 60 and 61 of the Contract. As regards Claim No. 26, Mr. Luhadia relied upon the case of Tarapore & Co. v. State of M.P., reported in (1994) 3 SCC 521. In this case, the question was whether the contractor was entitled to claim extra amounts because he had to pay increased wages to his workers. This Court has held that the contractor would have tendered on the basis of the then prevailing wages and as the contract required the contractor to pay the minimum wages if the minimum wages increased it was an implied term of the contract that he would not be entitled to claim the additional amount. However, it must be noted that, in this case, there was no term in the contract which prohibited any extra claims being made because of the increase in wages. Clause 31 of the Special Conditions of the Contract, which has been reproduced hereinabove, specifically bars the contractor from claiming any compensation or an increase in rate under such circumstances. Not only that but the Respondents had with their initial tender put in a term which provided that if there was any increase in the minimum wages by the Government the rates quoted by him would be increased by the same percentage. At the time of negotiation this Clause was dropped. Thus, the Respondents had themselves specifically agreed not to claim any compensation or increase by reason of increase in wages. This claim could therefore not have been granted.26. It prima facie appears that the majority of the claims are against the terms of the Contract. However, there are also other claims which are not against the terms of the Contract. To merely set aside the Award on ground of misconduct would work hardship on the Respondent as they would then be deprived of claims which may be maintainable. In our view the correct course would be to set aside the award and refer the matter back to an independent Umpire appointed by this Court. The Umpire will fix his own terms and conditions. We however clarify that only those claims covered by the two applications will be considered. Of course the Umpire will decide how many of the 39 claims formed part of the claims made in the two applications. Needless to state that the terms of the contract will be kept in mind and claims contrary to terms of the contract will undoubtedly not be allowed. The Umpire will also decide whether the Respondent had agreed to do the contracted work done during the extended period at the same rates and/or whether the Respondent is entitled to increased rates and if so at what rate. The Umpire shall decide only on the basis of the materials already placed before the earlier Arbitrators and the earlier Umpire. 27. | 1[ds]12. So far as the second ground is concerned, we have seen the two applications made by the Respondent. It prima facie appears that the two applications were for referring, in all, 28 claims to arbitration. The Respondent then made 39 claims before the Arbitrators. The Umpire has awarded in respect of all the 39 claims. If claims not referred to Arbitration have been dealt with and awarded the Umpire would have exceeded hisare unable to accept this submission. The Order dated 1st March, 1985 allowsdated 9th April, 1983 as part of application dated 5th October,It is in the context of claims raised in these two applications that the Arbitrators are instructed to decide all disputes between thewe are proposing to refer the matter back to an Umpire, we do not propose to go into the question as to whether or not the 39 claims were part of the two applications filed by the Respondent. In our view, this is a question which can be decided by the Umpire. All that we need to clarify is that if any claim did not form part of the two applications the same cannot be arbitrated upon and the Umpire will confine the reference to the claims made in the two applications. It must be mentioned that in the case of Orissa Mining Corporation Ltd. v. Prannath Vishvanath Rawlley, reported in (1977) 3 SCC 535 this Court has held that when an agreement is filed in Court and an order of reference is made, then the claim as a result of the order of reference is limited to that relief and the Arbitrator cannot enlarge the scope of reference and entertain fresh claims without a further order ofhowever, find that this point has in fact been urged both before the District Judge as well as before the High Court. This point, therefore, requires to bethe Respondents had fully acquainted themselves with the local conditions and had agreed to execute the work as per specifications and at the rates specified in ScheduleIt is only in respect of additional work that the Respondents were entitled to be paid at rates set out in B.S.R. 1975. Clause 12 provides that the Respondents had to make their own arrangements for petrol, diesel and lubricants. Clause 31 of the special conditions provides that the Respondent shall pay fair wages and comply with labour laws. The contract provides that the fact that the contractor had to pay fair/minimum wages and comply with labour laws would not entitle the contractor to claim compensation or rates higher than those tendered in the contract. Clause 57 of the special conditions provides that the rates quoted in Schedule G cover all possible eventualities and that no claim can be made in respect of items like source of material, availability of labour, means of approachare unable to accept this submission. In this case the award itself states that the award of Rs. 29,96,060/- is against claims 1 to 39, except claim No. 30. Therefore this award is in respect of claims covered by the contract and to that extent the Umpire has misconducted himself. Even otherwise the claim for damages is not in a sum of Rs. 27.50 lacs as claimed. Claims 27 and 28 which deal with damages are for Rs. 3,07,038/- and Rs. 1,58,904.85. The other claims, included in the figure of Rs. 27.50 given to this Court appear to be claims at enhanced rates for the contracted work done during the extended period. Mr. Lohadia denied that Respondents had agreed to do work during the extended period at the contracted rate. Thus at this stage, unlike in Paradip Portcase (supra), it does appear on the face of the record that higher rates for items covered by the contract have beenare unable to accept this submission of Mr. Luhadia. The Contract is very specific. The work specified in the Contract has to be done at the rates specified in Schedule ‘G‘. Even though Schedule G may be based on B.S.R. 1975 it is not exactly as B.S.R. 1975. Where in respect of a work specified in the contract the rate has been given in Schedule G that work could only be done at that rate. Works specified in the Contract does not become extra work. It is only in respect of extra work that rates specified in B.S.R. 1975 can be applied. To us it is clear that the claim No. 2 is contrary to the terms of the Contract. It is barred by Clauses 57, 60 and 61 of the Contract. As regards Claim No. 26, Mr. Luhadia relied upon the case of Tarapore & Co. v. State of M.P., reported in (1994) 3 SCC 521. In this case, the question was whether the contractor was entitled to claim extra amounts because he had to pay increased wages to his workers. This Court has held that the contractor would have tendered on the basis of the then prevailing wages and as the contract required the contractor to pay the minimum wages if the minimum wages increased it was an implied term of the contract that he would not be entitled to claim the additional amount. However, it must be noted that, in this case, there was no term in the contract which prohibited any extra claims being made because of the increase in wages. Clause 31 of the Special Conditions of the Contract, which has been reproduced hereinabove, specifically bars the contractor from claiming any compensation or an increase in rate under such circumstances. Not only that but the Respondents had with their initial tender put in a term which provided that if there was any increase in the minimum wages by the Government the rates quoted by him would be increased by the same percentage. At the time of negotiation this Clause was dropped. Thus, the Respondents had themselves specifically agreed not to claim any compensation or increase by reason of increase in wages. This claim could therefore not have been granted.It prima facie appears that the majority of the claims are against the terms of the Contract. However, there are also other claims which are not against the terms of the Contract. To merely set aside the Award on ground of misconduct would work hardship on the Respondent as they would then be deprived of claims which may be maintainable. In our view the correct course would be to set aside the award and refer the matter back to an independent Umpire appointed by this Court. The Umpire will fix his own terms and conditions. We however clarify that only those claims covered by the two applications will be considered. Of course the Umpire will decide how many of the 39 claims formed part of the claims made in the two applications. Needless to state that the terms of the contract will be kept in mind and claims contrary to terms of the contract will undoubtedly not be allowed. The Umpire will also decide whether the Respondent had agreed to do the contracted work done during the extended period at the same rates and/or whether the Respondent is entitled to increased rates and if so at what rate. The Umpire shall decide only on the basis of the materials already placed before the earlier Arbitrators and the earlier Umpire. | 1 | 8,163 | 1,326 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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. In this case the claim had been for Rs. 12,93,260. The Arbitrator awarded as follows: “M/s. Unique Builders Ltd. the claimant is entitled to receive from Paradeep Port Trust a sum of Rs. 8,51,315 with interest..” It was contended in that case that claims 2 and 7 (therein) could not have been awarded. This Court held that as the award was a lump sum award and as only Rs. 8,51,315 had been awarded against a claim of Rs. 12,93,260 it was not possible to say whether any amounts had been awarded against claims 2 and/or 7. Relying on this Mr. Lohadia submitted that even in this case it cannot be said whether any amounts have been awarded against claims alleged to be covered by the contract. We are unable to accept this submission. In this case the award itself states that the award of Rs. 29,96,060/- is against claims 1 to 39, except claim No. 30. Therefore this award is in respect of claims covered by the contract and to that extent the Umpire has misconducted himself. Even otherwise the claim for damages is not in a sum of Rs. 27.50 lacs as claimed. Claims 27 and 28 which deal with damages are for Rs. 3,07,038/- and Rs. 1,58,904.85. The other claims, included in the figure of Rs. 27.50 given to this Court appear to be claims at enhanced rates for the contracted work done during the extended period. Mr. Lohadia denied that Respondents had agreed to do work during the extended period at the contracted rate. Thus at this stage, unlike in Paradip Port Trust’s case (supra), it does appear on the face of the record that higher rates for items covered by the contract have been awarded. 25. As regards Claim No. 2 Mr. Luhadia fairly admitted that Clause 5.11(iii) of the Contract requires chiseling of stones on all sides. He however submitted that the rates given in Schedule G were only for chiseling of stones on one side. He submitted that this was clear from Note 1 under Schedule G which stated that Schedule G was based on B.S.R. 1975. He submitted that B.S.R. 1975 showed that such rates were only for chiseling stones on one side. He submitted that when the stone has to be chiseled on all sides the rates given in B.S.R. 1975 were to be applied. He submitted that claim No. 2 was based on those rates. We are unable to accept this submission of Mr. Luhadia. The Contract is very specific. The work specified in the Contract has to be done at the rates specified in Schedule ‘G‘. Even though Schedule G may be based on B.S.R. 1975 it is not exactly as B.S.R. 1975. Where in respect of a work specified in the contract the rate has been given in Schedule G that work could only be done at that rate. Works specified in the Contract does not become extra work. It is only in respect of extra work that rates specified in B.S.R. 1975 can be applied. To us it is clear that the claim No. 2 is contrary to the terms of the Contract. It is barred by Clauses 57, 60 and 61 of the Contract. As regards Claim No. 26, Mr. Luhadia relied upon the case of Tarapore & Co. v. State of M.P., reported in (1994) 3 SCC 521. In this case, the question was whether the contractor was entitled to claim extra amounts because he had to pay increased wages to his workers. This Court has held that the contractor would have tendered on the basis of the then prevailing wages and as the contract required the contractor to pay the minimum wages if the minimum wages increased it was an implied term of the contract that he would not be entitled to claim the additional amount. However, it must be noted that, in this case, there was no term in the contract which prohibited any extra claims being made because of the increase in wages. Clause 31 of the Special Conditions of the Contract, which has been reproduced hereinabove, specifically bars the contractor from claiming any compensation or an increase in rate under such circumstances. Not only that but the Respondents had with their initial tender put in a term which provided that if there was any increase in the minimum wages by the Government the rates quoted by him would be increased by the same percentage. At the time of negotiation this Clause was dropped. Thus, the Respondents had themselves specifically agreed not to claim any compensation or increase by reason of increase in wages. This claim could therefore not have been granted.26. It prima facie appears that the majority of the claims are against the terms of the Contract. However, there are also other claims which are not against the terms of the Contract. To merely set aside the Award on ground of misconduct would work hardship on the Respondent as they would then be deprived of claims which may be maintainable. In our view the correct course would be to set aside the award and refer the matter back to an independent Umpire appointed by this Court. The Umpire will fix his own terms and conditions. We however clarify that only those claims covered by the two applications will be considered. Of course the Umpire will decide how many of the 39 claims formed part of the claims made in the two applications. Needless to state that the terms of the contract will be kept in mind and claims contrary to terms of the contract will undoubtedly not be allowed. The Umpire will also decide whether the Respondent had agreed to do the contracted work done during the extended period at the same rates and/or whether the Respondent is entitled to increased rates and if so at what rate. The Umpire shall decide only on the basis of the materials already placed before the earlier Arbitrators and the earlier Umpire. 27.
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Ltd. v. Prannath Vishvanath Rawlley, reported in (1977) 3 SCC 535 this Court has held that when an agreement is filed in Court and an order of reference is made, then the claim as a result of the order of reference is limited to that relief and the Arbitrator cannot enlarge the scope of reference and entertain fresh claims without a further order ofhowever, find that this point has in fact been urged both before the District Judge as well as before the High Court. This point, therefore, requires to bethe Respondents had fully acquainted themselves with the local conditions and had agreed to execute the work as per specifications and at the rates specified in ScheduleIt is only in respect of additional work that the Respondents were entitled to be paid at rates set out in B.S.R. 1975. Clause 12 provides that the Respondents had to make their own arrangements for petrol, diesel and lubricants. Clause 31 of the special conditions provides that the Respondent shall pay fair wages and comply with labour laws. The contract provides that the fact that the contractor had to pay fair/minimum wages and comply with labour laws would not entitle the contractor to claim compensation or rates higher than those tendered in the contract. Clause 57 of the special conditions provides that the rates quoted in Schedule G cover all possible eventualities and that no claim can be made in respect of items like source of material, availability of labour, means of approachare unable to accept this submission. In this case the award itself states that the award of Rs. 29,96,060/- is against claims 1 to 39, except claim No. 30. Therefore this award is in respect of claims covered by the contract and to that extent the Umpire has misconducted himself. Even otherwise the claim for damages is not in a sum of Rs. 27.50 lacs as claimed. Claims 27 and 28 which deal with damages are for Rs. 3,07,038/- and Rs. 1,58,904.85. The other claims, included in the figure of Rs. 27.50 given to this Court appear to be claims at enhanced rates for the contracted work done during the extended period. Mr. Lohadia denied that Respondents had agreed to do work during the extended period at the contracted rate. Thus at this stage, unlike in Paradip Portcase (supra), it does appear on the face of the record that higher rates for items covered by the contract have beenare unable to accept this submission of Mr. Luhadia. The Contract is very specific. The work specified in the Contract has to be done at the rates specified in Schedule ‘G‘. Even though Schedule G may be based on B.S.R. 1975 it is not exactly as B.S.R. 1975. Where in respect of a work specified in the contract the rate has been given in Schedule G that work could only be done at that rate. Works specified in the Contract does not become extra work. It is only in respect of extra work that rates specified in B.S.R. 1975 can be applied. To us it is clear that the claim No. 2 is contrary to the terms of the Contract. It is barred by Clauses 57, 60 and 61 of the Contract. As regards Claim No. 26, Mr. Luhadia relied upon the case of Tarapore & Co. v. State of M.P., reported in (1994) 3 SCC 521. In this case, the question was whether the contractor was entitled to claim extra amounts because he had to pay increased wages to his workers. This Court has held that the contractor would have tendered on the basis of the then prevailing wages and as the contract required the contractor to pay the minimum wages if the minimum wages increased it was an implied term of the contract that he would not be entitled to claim the additional amount. However, it must be noted that, in this case, there was no term in the contract which prohibited any extra claims being made because of the increase in wages. Clause 31 of the Special Conditions of the Contract, which has been reproduced hereinabove, specifically bars the contractor from claiming any compensation or an increase in rate under such circumstances. Not only that but the Respondents had with their initial tender put in a term which provided that if there was any increase in the minimum wages by the Government the rates quoted by him would be increased by the same percentage. At the time of negotiation this Clause was dropped. Thus, the Respondents had themselves specifically agreed not to claim any compensation or increase by reason of increase in wages. This claim could therefore not have been granted.It prima facie appears that the majority of the claims are against the terms of the Contract. However, there are also other claims which are not against the terms of the Contract. To merely set aside the Award on ground of misconduct would work hardship on the Respondent as they would then be deprived of claims which may be maintainable. In our view the correct course would be to set aside the award and refer the matter back to an independent Umpire appointed by this Court. The Umpire will fix his own terms and conditions. We however clarify that only those claims covered by the two applications will be considered. Of course the Umpire will decide how many of the 39 claims formed part of the claims made in the two applications. Needless to state that the terms of the contract will be kept in mind and claims contrary to terms of the contract will undoubtedly not be allowed. The Umpire will also decide whether the Respondent had agreed to do the contracted work done during the extended period at the same rates and/or whether the Respondent is entitled to increased rates and if so at what rate. The Umpire shall decide only on the basis of the materials already placed before the earlier Arbitrators and the earlier Umpire.
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Common Cause, Registered Society Vs. Union of India (UOI) and Ors | with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in differ forms, freely moving about and mixing and commingling with fellow human beings. (See: Francis Coralie Mullin v. Administrator Union Territory of Delhi, AIR 1981 SC 746 = 1981(1) SCC 608 = 1981(2) SCR 516; Olga Tellis and others v. Bombay Municipal Corporation and others, AIR 1986 SC 180 (paras 33 and 34) = 1985(3) SCC 545 = 1985 Supp.(2) SCR 51; Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others, AIR 1991 SC 101 (paras 223, 234 and 259) = (1991) Supp.1 SCC 600 = 1990 Supp.(1) SCR 142). In Kharak Singh v. State of U.P., AIR 1963 SC 1295 = 1964(1) SCR 332, demociliary visit by the Police was held to be violative of Article 21. 160. A man has, therefore, to be left along to enjoy LIFE without fetters. He cannot be hounded out by the Police or C.B.I. merely to find out whether he has committed any offence or is living as a law-abiding citizen. Even under Article 142 of the Constitution, such a direction cannot be issued. While passing an order under Article 142 of the Constitution, this Court cannot ignore the substantive provision of law much less the constitutional rights available to a person (See : Supreme Court Bar Association v. Union of India and others, 1998(4) SCC 409 = AIR 1998 SC 1895 ). 161. Mr. Gopal Subramaniam contended that the court has itself taken care to say that the C.B.I. in the matter of investigation, would not be influenced by any observation made in the Judgment and that it would independently hold the investigation into the offence of criminal breach of trust or any other offence. To this, there is a vehement reply from Mr. Parasaran and we think he is right. It is contended by him that this Court having recorded a finding that the petitioner on being appointed as a Minister in the Central Cabinet, held a trust on behalf of the people and further that he cannot be permitted to commit breach of the trust reposed in him by the people and still further that the petitioner had deliberately acted in a wholly arbitrary and unjust manner and that the allotments made by him were wholly mala fide and for extraneous consideration, the direction to the CBI not to be influenced by any observations made by this Court in the judgment, is in the nature of palliative. The CBI has been directed to register a case against the petitioner in respect of the allegations dealt with the findings reached by this Court in the Judgment under review. Once the findings are directed to be treated as part of the First Information Report, the further direction that the CBI shall not be influenced by any observations made by this Court or the findings recorded by it, is mere lullaby. 162. We may say that we maintain the rule of accountability and liability of the Executive including public servants in administrative matters and confirm that there should be transparency in all what they do, specially where grant of largess is concerned. But, the present case is being decided on its own peculiar facts and features in which, the finding as to the commission of tort of misfeasance recorded by this Court or the award of exemplary damages as also direction for investigation by the C.B.I., cannot be sustained on account of errors apparent on the face of the record. 163. We may also point out that the powers of this Court under Article 32 and that of the High Court under Article 226 are plenary powers and are not fettered by any legal constraints. If the Court, in exercise of these powers has itself committed a mistake, it has the plenary power to correct its own mistake as pointed out by this Court in S. Nagaraja & Ors. v. State of Karnataka & Anr. 1993 Supp. (4) SCC 595, in which it was observed as under : Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decision is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. The Court also observed : Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherit in it is the universal calm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. The Court further observed : Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. 164. We have already held above that in the judgment under review, there are errors apparent on the face of the record, which has resulted in serious miscarriage of justice. It is for this reason only that we have proceeded to exercise the power of review. | 1[ds]16. We have seriously considered the contention of Mr. Parasara, as set out above, but we are unable to agree with him on the broad proposition placed before us25. In view of the discussion held above, it will be seen that though an order is issued in the name of the President, it does not become an order of the President passed by him personally, but remains, basically and essentially, the order of the Minister on whose advice the President had acted and passed that order. Moreover, as required by Article 77(1), all executive actions of the Govt. of India have to be expressed in the name of the President; but this would not make that order an order passed by the President personally. That being so, the order carries with it to immunity. Being essentially an order of the Govt. of India, passed in exercise of its Executive functions, it would be amenable to judicial scrutiny and, therefore, can constitute a valid basis for exercise of power of judicial review by this Court. The authenticity, validity and correctness of such an order can be examined by this Court in spite of the order having been expressed in the name of the President. The immunity available to the President under Article 361 of the Constitution cannot be extended to the orders passed in the name of the President under Article 77(1) or Article 77(2) of the Constitution.From the above, it will be seen that in spite of the fact that the Council of Ministers is collectively responsible to the House of the People, there may be an occasion where the conduct of a Minister may be censured if he or his subordinate have blundered and have acted contrary to law33. No doubt it was open to the House of the People (Lok Sabha) to take up the issue of the abuse of discretionary quota by the petitioner in his capacity as the Minister of State for Petroleum, and his conduct could have been debated and scrutinised on the floor of the House, but the mere fact this was not done would not mean that the allotments of petroleum outlets by him were immune from judicial scrutiny by this Court under Article 32 of the Constitution. Therefore, even if the matter was not raised on the floor of the Lok Sabha, it would be amenable to the jurisdiction of this Court under Article 32 of the Constitution.38. Essentially, under public law, it is the dispute between the citizen or a group of citizens on the one hand and the State or other public bodies on the other, which is resolved. This is done to maintain the rule of law and to prevent the State or the public bodies from acting in an arbitrary manner or in violation of that rule. The exercise of constitutional powers by the High Court and the Supreme Court under Articles 226 and 32 has been categorised as power of judicial review. Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of Fundamental Rights guaranteed by the Constitution. With the expanding horizon of Article 14 read with other Articles dealing with Fundamental Rights, every executive action of the Govt. or other public bodies, including Instrumentalities of the Govt., or those which can be legally treated as Authority within the meaning of Article 12, if arbitrary, unreasonable or contrary to law, is now amenable to the writ jurisdiction of this Court under Article 32 or the High Courts under Article 226 and can be validly scrutinised on the touchstone of the Constitutional mandates39. In a broad sense, therefore, it may be said that those branches of law which deal with the rights/duties and privileges of the public authorities and their relationship with the individual citizens of the State, pertain to public law, such as Constitutional and Administrative Law, in contradistinction to private law fields which are those branches of law which deal with the rights and liabilities of private individuals in relation to one another.e different between public and private law was again examined by this Court in Nilabati Behera v. State of Orissa (supra). Dr. Anand, J. (as His Lordship then was) in his separate concurring judgment laid down as under :-34. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting compensation in proceedings under Articles 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making monetary emends under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of `exemplary damages awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law35. This Court and the High Courts, being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law - through appropriate proceedings. Of course, relief in exercise of the power under Articles 32 and 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case, it possible. The decisions of this court in the line of cases starting with Rudul Sah v. State of Bihar granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through petitions filed under Articles 32 or 226 of the Constitution of India, notwithstanding the rights available under the civil law to the aggrieved party where the courts found that grant of such relief was warranted. It is a sound policy to punish the wrongdoer and it is in that spirit that the courts have moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so the courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental right of a citizen under Article 21 is concerned. Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply and the courts have to act firmly but with certain amount of circumstances and self-restraint, lest proceedings under Articles 32 or 226 are misused as a disguised substitute for civil action in private law.. This is a classific exposition of the realm of Public Law by (Dr.) Justice Anand (as His Lordship then was), who had added a note of caution that while exercising this jurisdiction, the Courts have to act firmly but with self-restraint lest the jurisdiction is abused as a disguise for civil action under Private Law.proposition cannot be accepted.Thus, were public functionaries are involved and matter relates to the violation of Fundamental Rights or the enforcement of public duties etc., the remedy would lie, at the option of the petitioner, under the public law notwithstanding that damages are also claimed in those proceedings51. The decisions relied upon by Mr. Parasaran, namely, P. Rathinam v. Union of India, (1989) Supp.2 SCC 716; In Re: Death of Sawinder Singh Grower, 1995 Supp.(4) SCC 450, cannot be pressed in aid as in the earlier case, criminal trial was pending while in the latter case the matter had not been finally investigated.60. There is, therefore, not much of a difference between the powers of the court exercised here in this country under Article 32 or 226 and those exercised in England for judicial Review. Public law remedies are available in both the countries and the courts can award damages against public authorities to compensate for the loss or injury caused to the plaintiff/petitioner, provided that case involves, in this country, the violation of fundamental rights by the Govt. or other public authorities or that their action was wholly arbitrary or oppressive in violation of Article 14 or in breach of statutory duty and is not a purely private matter directed against a private individual.submission is also liable to be rejected.. The course of justice, insofar as the tortious liability of the State in concerned, was disturbed by the decision of this Court in Kasturi Lal Ralia Ram Jain v. State of U.P., AIR 1965 SC 1039 =1965(1) SCR 375, in which a partner of Kasturilal Rali Ram Jain, a firm of jewellers of Amritsar, had gone to Meerut for selling gold and silver, but was taken into custody by the police on the suspicion of possessing stolen property. He was released the next day, but the property which was recovered from his possession could not be returned to him in its entirety inasmuch as the silver was returned but the gold could not be returned as the Head Constable in charge of the Malkhana misappropriated it and fled to Pakistan. The firm filed a suit against the State of U.P. for the return of the ornaments and in the alternative for compensation. This Court speaking through Gajendragadkar, CJ, observed as under :-The act of negligence was committed by police officers while dealing with the property of Ralia Ram which they had seized in the exercise of their statutory powers. Now, the power to arrest a person, to search him, and to seize property found with him, are powers conferred on the specified officers by statute and in the last analysis, they are powers which can be properly characterised as sovereign powers, and so, there is no difficulty in holding that the act which gave rise to the present claim for damages has been committed by the employees of the respondent during the course of their employment; but the employment in question being of the category which can claim the special characteristic of sovereign power, the claim cannot be sustained.. The earlier decision of this Court in Mst. Vidyavatis case (supra) was distinguished on the ground that it was based on a tortious liability not arising from the exercise of Sovereign power. The decision in Kasturilals case (supra0, has, apart from being criticised (See : Constitutional Law of India by Seervai), not been followed by this Court in subsequent decisions and, therefore, much of its efficacy as a binding precedent has been ordered. Reference in this connection may be made to the decisions of this Court in State of Gujarat v. Memon Mahomed Haji Hasan, AIR 1967 SC 1885 and Smt. Basava Kom Dyamogouda Patil v. State of Mysore, AIR 1977 SC 1749 and a number of other cases, including those dealt with under Article 32 of the Constitution by this Court in all of which compensation and damages were awarded to the petitioner for tortious liability of the servants of the State. These cases, namely, Rudul Shah v. State of Bihar (supra), Bhim Singh v. State of J&K (supra), Saheli, a Womans Recourses Centre v. Commr. of Police, Delhi (supra); Peoples Union of Democratic Rights v. Police Commissioner, Delhi (supra) and Sebastin H. Hongray v. Union of India, 1984(3) SCC 85 = AIR 1984 SC 1026 , do not refer to the decision of this Court in Kasturilals case (supra). It m ay be mentioned that in Kasturilals case, the court did not consider the State liability for violation of Fundamental Rights of a citizen relating to Life and Personal Liberty. It will be seen that where on account of tortious act of the servant of a State, a persons Fundamental Right to LIfe and Liberty was violated, the Court granted damages and compensation to that person. The liability is based on the provisions of the Constitution and is a new liability which is not hedged in by any limitations including the doctrine of `Sovereign immunity. Reference may also be made to the decision of Privy Council in Maharaj v. Attorney General of Trinidad and Tobago, (No. 2) 1978(2) AII ER 670 in which the appellant, who was a Barrister was sentenced to 7 days imprisonment by a Judge of the High Court, which was set aside by the Privy Council in appeal. The appellant, in the meantime, applied redress under Section 6 of the Constitution of Trinidad and Tobago on the ground that he was deprived of his liberty without due process of law as guaranteed to him under Section 1 of that Constitution. The claim was dismissed by the High Court. But was upheld by the Privy Council in appeal. The Privy Council held that Section 6 of the Constitution impliedly allowed the High Court to award compensation as compensation may be the only practicable form of redress in some cases.76. For the reasons stated above, we are of the view that the allotment of petrol outlets by the petitioner cannot be treated as act of the State and the rule of immunity invoked by Mr. Parasaran cannot be accepted.Apart from tort which may be committed by a private individual, the officers of the Govt. would also be liable in damages for their wrongful acts provided that act does not fall within the purview of act of the State. So also, the administrative bodies or authorities, which deal in administrative matters and take decisions specially for the implementation of the Govt. policies, have to act fairly and objectively and may in some cases also be required to follow the principles of natural justice. It is the basic principle of Administrative Law that if the authorities are conferred certain power, then that power must be exercised in good faith and the administrative decision must be made after taking into account all matters relevant for the exercise of that power. The authority must not be influenced by irrelevant matters and if the order is likely to prejudicially affect the rights, or, even the reasonable expectation of a person, the principles of natural justice must be followed and the person likely to be affected must be given an opportunity of hearing. Thus, the decision of an administrative authority can be challenged on the grounds, inter alia, of illegality, irrationality and procedural impropriety.. The above list will show that not only to the Minister of Petroleum, but beginning from the Prime Minister, down to other Ministers, including Members of Parliament, a discretionary quota has been made available to them100. So far as the Minister of Petroleum is concerned, the allotments made by the petitioner were challenged in this Court in Centre for Public Interest Litigation v. Union of India & others, Writ Petition (C) No. 886 of 1993, decided on March 31, 1995 since reported in 1995 Supp.(3) SCC 382, But the Court did not set aside or quash any of the allotments and instead framed guidelines for the exercise of discretionary allotment of petroleum products agencies. These guidelines were settled with the assistance of the Attorney General who submitted a draft of the proposed guidelines. After considering the guidelines, the Court directed as under:The following to be inserted in the brochure of guidelines for selection of dealers through the Oil Selection Board:A discretionary quota will be earmarked for deserving cases on genuine compassionate grounds. This quota will be outside the 100 point roster of marketing plans and outside the purview of the Oil Selection BoardsCandidates will submit a proper application to the Ministry, giving their complete bio-data indicating the name of spouse/father, occupation, permanent address, annual income for the preceding year in respect of self, spouse and parents from all sources enclosing documentary evidence wherever necessary in support of their request and an affidavit verifying the given factsDiscretionary allotment will be made to a candidate only if he is a citizen of India. If he/she or any of his/her following close relatives (including step relatives) does not already hold a dealership of petroleum products of any oil company:(iv) son/daughter0in-law.n the Court directed as under:The above-quoted norms/guidelines etc. shall be followed by the Central Government in making all such discretionary allotment of retail outlets for petroleum products, LPG Dealership and SKO Dealership, hereafter. A copy of this order be provided to every oil company by the Central Government for general information.. We have not reproduced the general guidelines or general conditions or, for that matter, the procedure fixed by the Court for allotment of petrol outlets, but have reproduced only that portion which has been considered necessary by us for disposal of this case as they relate to discretionary quota.Normally, we would have accepted this argument, but in this case we cannot go to that extent. We have already stated in the beginning that the judgment of the Court, in sofar as it purports to set aside the 15 allotments made by the petitioner, will not be reviewed by us as the review applications filed by the allotees have already been rejected. We, therefore, cannot entertain any plea which even indirectly aims at setting aside the judgment under review on that question103. Significantly, it is not even suggested that the guidelines issued by the Court in 1995 Supp(3) SCC 382 were violated in any subsequent allotment or that allotments were made in excess of the quota after that judgment104. In a case relating to manufacturers discretionary quota concerning Maruti-800, this Court had to intervene. The then Attorney General who happened to be none other than Mr. K. Parasaran, arguing before us as Senior Counsel today, was requested by the Court to provide the draft guidelines which was done and the guidelines were approved by the Court and the Court fixed the guidelines for the exercise of manufacturers five per cent discretionary quota concerning allotment of `Maruti-800 cars. (See: Ashok K. Mittal v. Maruti Udyog Ltd. & another, 1986(1) SCR 585). While conceding discretionary quota to the manufacturers, the Court fixed the guidelines for regulating the allotments of Maruti cars out of discretionary quota to various customers falling in the category of Defence Forces, Judiciary, Constitutional Heads, MPs, etc.Since this question again turns on the merit of the allotments made by the petitioner, we would not look into it. We have mentioned the philosophy of discretionary quota being made available to the Ministers, only as a prelude to our decision on the question whether on the facts of this case the petitioner could be held to have committed the tort of misfeasance in public office. The basis of the finding recorded in the impugned judgment on this question is the decision of this Court in Lucknow Development Authoritys case (supra) which did not consider even the basic elements which constitute the tort of misfeasance which we have already discussed above106. The whole proceedings were initiated on the basis of a Press report which was brought to the notice of the Court by Mr. H.D. Shourie, Director, Common Cause whose Writ Petition was already pending and it was on that basis in that pending Writ Petition that the Court took cognizance of the matter. The allotments were made by the petitioner in his capacity as Minister of State for Petroleum and Natural Gas as and when an application was made by separate and individual persons. There was none to compete with that person. The individual concerned would approach the petitioner and the petitioner, perhaps, on being satisfied with the contents of the application, as also the need for a petrol outlet in the area, make the allotment. Had there been any other applicant for the same petrol outlet for which an application was made to the Minister, the question that he deliberately made the allotment in favour of one so as to injure the other person would then have positively arisen. The petitioner cannot be said to have made the allotment in favour of one cut of malice towards the other as there was none else, to contest or compete with the claim of the person who made the application for allotment. Nor could it be said that the petitioner made the allotment of petrol outlet in favour of the applicant with the knowledge that such allotment was likely to injure the interest of any other person107. The petitioner before the Court was Common Cause. It was a registered Society. It was not one of the applicants for allotment of petrol outlet. Had the Common Cause approached the Civil Court for damages on account of tort of misfeasance in public office, its suit would have been dismissed on the ground that it was not one of the applications for a petrol outlet; its own interest was not injured in any way nor had the petitioner made allotment in favour of one of the applicants maliciously or with the knowledge that the allotment would ultimately harm the Common Cause. How could then a finding of commission of misfeasance in public office by the petitioner be recorded in proceedings under Article 32 and that too, at the instance of Common Cause on the basis of a Press report ? Mr. Gopal Subramaniam contended that Common Cause was justified in filing the petition under Article 32 in Public Interest to expose the want on way in which allotments were made by the petitioner. To that extent, Mr. Gopal Subramaniam is right. The Court has already quashed the fifteen allotments made by the petitioner in view of the arbitrary exercise of power by him. But the Court went a step further and held that petitioner, had committed the Tort of Misfeasance in Public Officer and awarded exemplary damages. It is this aspect which we are examining and it is in this context that we say that Common Cause not being an applicant for allotment of a Petrol outlet could not have obtained a finding in the Civil Suit that the petitioner had committed the Tort of Misfeasance in Public Office108. Having regard to the definition of tort of misfeasance in public office as discussed above and having regard to the ingredients of that tort, it is obvious that there has to be an identifiable plaintiff or claimant whose interest was damaged by the public officer maliciously or with the knowledge that the impugned action was likely to injure the interest of that person. It is in favour of that specific identifiable plaintiff or claimant that the relief could have been granted and damages awarded to him as the whole gamut of the Law of Tort is compensatory in nature and damages are awarded to compensate the losses caused on account of violation of the interest of one person by another. In other words, obtaining compensation for a tortiously inflicted loss is generaly perceived as the aim of the law of tort by the plaintiff. Judgment in favour of the plaintiff can be given and the loss suffered by him can be redressed only when a finding of a breach of an obligation by the tort-feasor is recorded. It is the compensatory function of tort which is invoked by the plaintiff in a Court and unless there is an identifiable plaintiff, there cannot be any order for compensation or damages to redress the loss caused to that plaintiff109. Mere allotment of Petrol outlets would not constitute Misfeasance unless other essential elements were present. These allotments have already been quashed as having been arbitrarily made and we appreciate the efforts of Common Cause for having caused this exposure. But the matter must end here110. It cannot be ignored that the allotments made by the petitioner under the discretionary quota were challenged in this Court but the Court did not interfere with those allotments and instead settled the guidelines for future allotments. It is not alleged nor has it been found that any allotment was made in violation of the guidelines. It cannot also be ignored that the petitioner is not alleged to have intereferred with any allotment made through the Oil Selection Boards or the process of selection carried out by the Boards.true that there are millions of poor. unemployed, educated or uneducated young men, who might have deserved preferential treatment, but all of them had not approached the petitioner nor the petitioner was expected to know all of them personally. If an advertisement were to be issued and applications were to be invited for allotment of Petrol outlets on the basis of auction, it would still not have been possible for the millions of poor or unemployed persons to have applied for allotment or to participate in the bid. Auction is usually held to augment the revenue. Physically hand capped, poor, unemployed, illiterate out cannot be expected to participate in the auction and offer their bids. Moreover, this would be contrary to the concept of discretionary quota, the main purpose of which is to provide immediate relief to the most needy. Even the guidelines settled by this Court do not provide for allotment being made by public auction112. In view of the above, the conduct of the petitioner in making allotments of petrol outlets was atrocious, specially those made in favour of the Members, Oil Selection Board or their son, etc., and reflects a wanton exercise of power by the petitioner. This Court has already used judicial vituperative in respect of such allotments and we need not strain our vocabulary any further in that regard. Suffice it to say that though the conduct of the petitioner was wholly unjustified, it falls short of misfeasance in public office which is a specific tort and the ingredients of that tort are not wholly met in the case. That being so, there was no occasion to award exemplary damages.117. Now, the damages which can be awarded in an action based on Tort may be Contemptuous, Nominal, Ordinary or, for that matter, Exemplary. In the instant case, we are concerned with the Exemplary Damages awarded by this Court by Judgment under review118. As pointed out earlier, the primary object of award of damages is to compensate the plaintiff for the harm done to him, while the secondary object is to punish the defendant for his conduct in inflicting the harm. The secondary object can also be achieved in awarding, in addition to normal compensatory damages, damages which are variously called as exemplary damages, (sic) vindictive damages or retributory damage. These are awarded whenever the defendants conduct (sic) to be sufficiently outrageous to merit punishment for example where the conduct discloses malice cruelty indolence or the like119. It will thus be seen that in awarding punitive or exemplary damages, the emphasis is not on the plaintiff and the injury caused to him, but on the defendant and his conduct.121. The whole legal position was reviewed in Rookes v. Barnard, 1964 AC 1129 and the House of Lords laid down that except in few exceptional cases, it would not be permissible to award exemplary damages against the defendant howsoever outrageous his conduct might be. The question of damages was thoroughly canvassed in the judgment of Lord Devlin and after tracing the history of such awards of exemplary damages from their origin in 1763, he observed :These authorities convince me of two things. First, that your lordships could not without a complete disregard of precedent, and indeed of statute, now arrive at a determination that refused altogether to recognise the exemplary principle. Secondly, that there are certain categories of cases in which and award of exemplary damages conserve a useful purpose in vindicating the strength of the law, and thus affording a practical justification for admitting into the civil law a principle which ought logically to belong to the criminal... I am well aware that what I am about to say will, if accepted, impose limits not hitherto expressed on such awards and that there is powerful, though not compelling authority for allowing them a wider range.. Lord Devlin then set out the categories in which, in his view, exemplary damages could be awarded, as under :(1) where there has been oppressive, arbitrary or unconstitutional action by the servants of the government;(2) where the defendants conduct has been calculated by him to make a profit which may well exceed the compensation payable to the plaintiff; and(3) where such damages are expressly authorised by statute.124. In 1971 came the decision in Broome v. Cassell & Co. Ltd. 1971(2) All ER 187. The facts of the case may be briefly stated :(a) John Egerton Broome was a commander in the Royal Navy. In July 1942 he was in command of the naval escort for a merchant convoy of war materials en route to the Soviet Union. Acting on orders received from the Admiralty, which had mistakenly formed the impression that the convoy was about to be attacked, Broome directed the ships to scatter in every direction. The result was calamitous. Left unprotected from attack, large numbers of ships and men and vast quantities of material were lost. Broomes action was vindicated; the error was the Admiraltys not his. Many persons wrote about the catastrophe, including Sir Winston Churchill and the wars official historian, but none faulted Broome for it until Cassell & Co. Ltd. published The Destruction of P.JO 17(b). The book, advertised as the true story of biggest-ever Russian convoy that the Royal Navy left to annihilation, blamed Broome for the disaster, accusing him of disobeying orders and deserting the convoy. The book had earlier been rejected by i.e. authors regular publisher, who had said`As written, the book is a continuous witch hunt of the plaintiff, filled with exaggerated criticisms of what he did or did not do... We could not possibly publish the book as it is unless you took out insurance against any writs for libel, and I dont think that any insurance company would underwrite you.The authors then submitted the book for publication to Cassell & Co. Ltd., which praised the book for its very robust view of libel dangers. Cassell though that the amount of profit which he would earn by publishing the book would far exceed the amount of damage which he would be required to pay in an action for libel. As anticipated, action for libel was instituted again Cassell & Company. At the trial, neither the author nor the publisher gave evidence. Every witness who was called support the plaintiff. The jury awarded compensatory damages of Pound 1,000 in respect of the proof copies and Pound 14,000 in respect of the hardback edition, and exemplary damages of Pound 25,000The defendants appealed. In dismissing the appeal, the Court of Appeal considered the judgment in Rookes v. Barnard and speaking through Lord Denning, M.R. said that Lord Devlin,`threw over all that we ever knew about exemplary damages. He knocked down the common law as it had existed for centuries. He laid down a new doctrine about exemplary damages.Lord Denning pointed out that, although Rookes v. Barnard had been followed in England, it had not been accepted in Australia, Canada or New Zealand and the day had arrived when it should no longer be followed in England:`This wholesale condemnation justifies us. I think, in examining this new doctrine for ourselves: and I make so bold as to say that it should not be followed any longer in this country.He gave four reasons :(a) the common law on the subject had been so well settled before 1964 that if was not open to the House of Lords to overthrow it;(b) counsel who had appeared in Rookes v. Barnard had not argued the point, and indeed had accepted the common law as it was then understood;(c) contrary to what Lord Devlin had said, there were two previous decisions of the House of Lords approving awards of exemplary damages; and(d) the doctrine laid down by Rookes v. Barnard was hopelessly illogical and inconsistent.d Denning further observed :-All this leads me to the conclusion that, if ever there was a decision of the House of Lords given per incuriam, this was it. The explanation is that the House, as a matter of legal theory, though that exemplary damages had no place in the civil code, and ought to be eliminated from it; but, as they could not be eliminated altogether, they ought to be confined within the strictest possible its, no matter how illogical those limits were... I think the difficulties presented by Rookes v. Barnard are so great the judges should direct the juries in accordance with the law as it was understood before Rookes v. Barnard. Any attempt to follow Rookes v. Barnard is bound to lead to confusion.. Matter went up in appeal before the house of Lords. (Cassell & Co. Ltd. v. Broome & Anr. 1972(1) All ER 801 = 1972 A.C. 1027). Lord Hailsham L.C. did not agree with the Court of Appeal and held that Rookes v. Barnard (supra) was correctly decided. All the observations of Lord Denning including that Rookes v. Barnard was decided per incuriam were diluted, rather overruled126. It is in this background that category (2) set out by Lord Devlin was specified. Cassell & Company had published the book in spite of the knowledge that an action for libel was likely to be instituted against them. They were fully conscious that damages were likely to be awarded against them for publishing that book. But they published the book as they though that the book would bring them much more money than what they would be required to pay as damages. If it is with this motive that a tort is purposely committed, it would be a fit case for award of exemplary damages29. If we were to apply the rule in Rookes v. Barnard as upheld in Cassell & Co. Ltd. v. Broome (supra) invariably and unhesitatingly and were to award exemplary damages in every case involving Govt. officers or Govt. seryants, the result would be appalling.136. Petitioner, as Minister of State for Petroleum and Natural Gas, was part of the Central Govt. By directing petitioner to pay a sum of Rs. 50 laksh to the Govt., the Court has awarded damages in favour of the Govt. of India in proceedings under Article 32 of the Constitution which is not permissible as the Court cannot direct the Govt. to pay the exemplary damages to itself.137. This cannot be accepted. The whole thing has to be examined in the context of Article 32 of the Constitution under which relief to a person or citizen can be granted only against Union of India or the State or their Instrumentalities but the State cannot legally claim that since one of its Ministers or Officers had violated the fundamental rights of a citizen or had acted arbitrarily, it should be compensated by awarding exemplary damages against that officer or Minister138. IN Rookes v. Barnard (supra), it was pointed out by Lord Devlin that a plaintiff cannot recover exemplary damages unless he is the victim of punishable behaviour. We have already pointed out that in the instant case, there was no plaintiff. The petitioner, Common Cause, cannot be said to be a plaintiff nor can it claim to have suffered any damage or loss on account of the conduct of the petitioner139. Lord Devlin further pointed out that award of exemplary damages should be moderate. Some of the awards that the jury had made in the pat, seemed to him, to amount to a greater punishment than the punishment which was likely to be incurred if the conduct were criminal. It would be a punishment imposed without the safeguard which the criminal law gives to an offender. Lord Devlin had a third consideration also in mind which related to the means of the party. Obviously, a small exemplary award would go unnoticed by a rich defendant, while even a moderate award might cripple a poor defendant. The conduct of the parties throughout the proceedings would also be a relevant consideration in assessing exemplary damages140. In our opinion, these elements or considerations are extremely relevant in determining the amount of exemplary damages but, unfortunately, none of these factors has been taken into consideration and after recording a finding that the conduct of the petitioner was oppressive and that he had made allotments in favour of various persons for extraneous considerations, the Court awarded an amount of Rs. 50 lakhs as punitive damages.142. This direction obviously consists of two parts : (a) Investigation by the C.B.I. into the offence of criminal breach of trust; and (b) Investigation by the C.B.I. into any other offence.These observations indicate that the Court was of the opinion that a person on being elected by the people and on becoming a Minister holds a sacred trust on behalf of the people. This, we may venture to say, is a philosophical concept and reflects the image of virtue in its highest conceivable perfection. This philosophy cannot be employed for determination of the offence of criminal breach of trust which is defined in the Indian Penal Code. Whether the offence of criminal breach of trust has been committed by a person has to be determined strictly on the basis of the definition of the offence set out in the Penal Code to which we would advert a little later145. The Court also appears to have invoked the `Doctrine of Public Trust which is a doctrine of environmental law under which the natural resources such as air, water, forest, lakes, rivers and wild life are public properties entrusted to the Government for their safe and proper use and proper protection. Public Trust Law recognises that some types of natural resources are held in trust by the Government for the benefit of the public. The `Doctrine of Public Trust has been evolved so as to prevent unfair dealing with or dissipation of all natural resources. This Doctrine is an ancient and somewhat obscure creation of Roman and British law which has been discovered recently by environmental lawyers in search of a theory broadly applicable to environmental litigation.matter may be examined from another angle147. Election to the State Legislature or the House of the People are held under the Constitution on the basis of adult suffrage. On being elected as a Member of the Parliament, the petitioner was inducted as Minister of State. The Department of Petroleum and natural Gas was allocated to him. Under the allocation of business rules, made by the President of India, the distribution of petroleum products, inter alia, came to be allocated to the petitioner. This allocation of business under the Constitution is done for smooth and better administration and for more convenient transaction of business of Government of India. In this way, neither a trust, as ordinarily understood or as defined under the Trust Act, was created in favour of the petitioner nor did he become a trustee in that sense.Applying the principles laid down above, the petitioner does not, on becoming the Minister of State for Petroleum and Natural Gas, assume the role of a trustee in the real sense nor does a trust come into existence in respect of the Government properties.A trust contemplated by Section 405 would arise only when there is an entrustment of property or domination over property. There has, therefore, to be a property belonging to someone which is entrusted to the person accused of the offence under Section 405. The entrustment of property creates a trust which is only an obligation annexed to the ownership of the property and arises out of a confidence reposed and accepted by the owner.157. Having regarding to the facts of the case discussed above and the ingredients of the offence constituting criminal breach of trust, as defined in section 405, or the offence as set out in section 409 IPC, we are of the opinion that there was no case made out against the petitioner for any case being registered against him on the basis of the judgment passed by this Court nor was there any occasion to direct an investigation by the CBI in that case158. The other direction, namely, the direction to the C.B.I. to investigate any other offence is wholly erroneous and cannot be sustained. Obviously, direction for investigation can be given only if an offence is, prima facie, found to have been committed or a persons involvement is prima facie established, but a direction to the C.B.I. to investigate whether any person has committed an offence or not cannot be legally given. Such a direction would be contrary to the concept and philosophy of LIFE and LIBERTY guaranteed to a person under Article 21 of the Constitution. This direction is in complete negation of various decisions of this Court in which the concept of LIFE has been explained in a manner which has infused LIFE into the letters of Article 21.162. We may say that we maintain the rule of accountability and liability of the Executive including public servants in administrative matters and confirm that there should be transparency in all what they do, specially where grant of largess is concerned. But, the present case is being decided on its own peculiar facts and features in which, the finding as to the commission of tort of misfeasance recorded by this Court or the award of exemplary damages as also direction for investigation by the C.B.I., cannot be sustained on account of errors apparent on the face of the record163. We may also point out that the powers of this Court under Article 32 and that of the High Court under Article 226 are plenary powers and are not fettered by any legal constraints. If the Court, in exercise of these powers has itself committed a mistake, it has the plenary power to correct its own mistake163. We may also point out that the powers of this Court under Article 32 and that of the High Court under Article 226 are plenary powers and are not fettered by any legal constraints. If the Court, in exercise of these powers has itself committed a mistake, it has the plenary power to correct its own mistakeas pointed out by this Court in S. Nagaraja & Ors. v. State of Karnataka & Anr. 1993 Supp. (4) SCC 595, in which it was observed as under :Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decision is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order.e Court also observed :Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherit in it is the universal calm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice.e Court further observed :Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality.. We have already held above that in the judgment under review, there are errors apparent on the face of the record, which has resulted in serious miscarriage of justice. It is for this reason only that we have proceeded to exercise the power of review. | 1 | 34,877 | 8,462 | ### Instruction:
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with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in differ forms, freely moving about and mixing and commingling with fellow human beings. (See: Francis Coralie Mullin v. Administrator Union Territory of Delhi, AIR 1981 SC 746 = 1981(1) SCC 608 = 1981(2) SCR 516; Olga Tellis and others v. Bombay Municipal Corporation and others, AIR 1986 SC 180 (paras 33 and 34) = 1985(3) SCC 545 = 1985 Supp.(2) SCR 51; Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others, AIR 1991 SC 101 (paras 223, 234 and 259) = (1991) Supp.1 SCC 600 = 1990 Supp.(1) SCR 142). In Kharak Singh v. State of U.P., AIR 1963 SC 1295 = 1964(1) SCR 332, demociliary visit by the Police was held to be violative of Article 21. 160. A man has, therefore, to be left along to enjoy LIFE without fetters. He cannot be hounded out by the Police or C.B.I. merely to find out whether he has committed any offence or is living as a law-abiding citizen. Even under Article 142 of the Constitution, such a direction cannot be issued. While passing an order under Article 142 of the Constitution, this Court cannot ignore the substantive provision of law much less the constitutional rights available to a person (See : Supreme Court Bar Association v. Union of India and others, 1998(4) SCC 409 = AIR 1998 SC 1895 ). 161. Mr. Gopal Subramaniam contended that the court has itself taken care to say that the C.B.I. in the matter of investigation, would not be influenced by any observation made in the Judgment and that it would independently hold the investigation into the offence of criminal breach of trust or any other offence. To this, there is a vehement reply from Mr. Parasaran and we think he is right. It is contended by him that this Court having recorded a finding that the petitioner on being appointed as a Minister in the Central Cabinet, held a trust on behalf of the people and further that he cannot be permitted to commit breach of the trust reposed in him by the people and still further that the petitioner had deliberately acted in a wholly arbitrary and unjust manner and that the allotments made by him were wholly mala fide and for extraneous consideration, the direction to the CBI not to be influenced by any observations made by this Court in the judgment, is in the nature of palliative. The CBI has been directed to register a case against the petitioner in respect of the allegations dealt with the findings reached by this Court in the Judgment under review. Once the findings are directed to be treated as part of the First Information Report, the further direction that the CBI shall not be influenced by any observations made by this Court or the findings recorded by it, is mere lullaby. 162. We may say that we maintain the rule of accountability and liability of the Executive including public servants in administrative matters and confirm that there should be transparency in all what they do, specially where grant of largess is concerned. But, the present case is being decided on its own peculiar facts and features in which, the finding as to the commission of tort of misfeasance recorded by this Court or the award of exemplary damages as also direction for investigation by the C.B.I., cannot be sustained on account of errors apparent on the face of the record. 163. We may also point out that the powers of this Court under Article 32 and that of the High Court under Article 226 are plenary powers and are not fettered by any legal constraints. If the Court, in exercise of these powers has itself committed a mistake, it has the plenary power to correct its own mistake as pointed out by this Court in S. Nagaraja & Ors. v. State of Karnataka & Anr. 1993 Supp. (4) SCC 595, in which it was observed as under : Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decision is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. The Court also observed : Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherit in it is the universal calm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. The Court further observed : Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. 164. We have already held above that in the judgment under review, there are errors apparent on the face of the record, which has resulted in serious miscarriage of justice. It is for this reason only that we have proceeded to exercise the power of review.
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held under the Constitution on the basis of adult suffrage. On being elected as a Member of the Parliament, the petitioner was inducted as Minister of State. The Department of Petroleum and natural Gas was allocated to him. Under the allocation of business rules, made by the President of India, the distribution of petroleum products, inter alia, came to be allocated to the petitioner. This allocation of business under the Constitution is done for smooth and better administration and for more convenient transaction of business of Government of India. In this way, neither a trust, as ordinarily understood or as defined under the Trust Act, was created in favour of the petitioner nor did he become a trustee in that sense.Applying the principles laid down above, the petitioner does not, on becoming the Minister of State for Petroleum and Natural Gas, assume the role of a trustee in the real sense nor does a trust come into existence in respect of the Government properties.A trust contemplated by Section 405 would arise only when there is an entrustment of property or domination over property. There has, therefore, to be a property belonging to someone which is entrusted to the person accused of the offence under Section 405. The entrustment of property creates a trust which is only an obligation annexed to the ownership of the property and arises out of a confidence reposed and accepted by the owner.157. Having regarding to the facts of the case discussed above and the ingredients of the offence constituting criminal breach of trust, as defined in section 405, or the offence as set out in section 409 IPC, we are of the opinion that there was no case made out against the petitioner for any case being registered against him on the basis of the judgment passed by this Court nor was there any occasion to direct an investigation by the CBI in that case158. The other direction, namely, the direction to the C.B.I. to investigate any other offence is wholly erroneous and cannot be sustained. Obviously, direction for investigation can be given only if an offence is, prima facie, found to have been committed or a persons involvement is prima facie established, but a direction to the C.B.I. to investigate whether any person has committed an offence or not cannot be legally given. Such a direction would be contrary to the concept and philosophy of LIFE and LIBERTY guaranteed to a person under Article 21 of the Constitution. This direction is in complete negation of various decisions of this Court in which the concept of LIFE has been explained in a manner which has infused LIFE into the letters of Article 21.162. We may say that we maintain the rule of accountability and liability of the Executive including public servants in administrative matters and confirm that there should be transparency in all what they do, specially where grant of largess is concerned. But, the present case is being decided on its own peculiar facts and features in which, the finding as to the commission of tort of misfeasance recorded by this Court or the award of exemplary damages as also direction for investigation by the C.B.I., cannot be sustained on account of errors apparent on the face of the record163. We may also point out that the powers of this Court under Article 32 and that of the High Court under Article 226 are plenary powers and are not fettered by any legal constraints. If the Court, in exercise of these powers has itself committed a mistake, it has the plenary power to correct its own mistake163. We may also point out that the powers of this Court under Article 32 and that of the High Court under Article 226 are plenary powers and are not fettered by any legal constraints. If the Court, in exercise of these powers has itself committed a mistake, it has the plenary power to correct its own mistakeas pointed out by this Court in S. Nagaraja & Ors. v. State of Karnataka & Anr. 1993 Supp. (4) SCC 595, in which it was observed as under :Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decision is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order.e Court also observed :Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherit in it is the universal calm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice.e Court further observed :Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality.. We have already held above that in the judgment under review, there are errors apparent on the face of the record, which has resulted in serious miscarriage of justice. It is for this reason only that we have proceeded to exercise the power of review.
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Urban Infrastructure Real Estate Fund Vs. Dharmesh S. Jain and Another | M.R. SHAH, J. 1. Vide detailed judgment and order dated 10.03.2022 passed in the aforesaid Contempt Petition, this Court held the respondents guilty, more particularly, respondent No.1 herein – Dharmesh S. Jain, for the contempt of this Court for wilful disobedience of the order dated 28.10.2021 passed by this Court in Miscellaneous Application No. 1668 of 2021 in Special Leave Petition (Civil) No. 14724/2021, as also, for wilful disobedience of the order passed by the High Court dated 08.08.2019 in Notice of Motion No. 960 of 2019 in Commercial Arbitration Petition No. 55 of 2019 and the respondents herein rendered themselves liable for suitable punishment under the provisions of the Contempt of Courts Act. By the aforesaid judgment and order dated 10.03.2022, the respondents/contemnors were required to be heard on the quantum of sentence. Accordingly, on 22.03.2022, the matter was placed before the Bench for further hearing on the quantum of sentence. 2. We have heard Shri Vikas Singh, learned Senior Advocate appearing on behalf of the contemnors on the quantum of sentence. However, at his request, the order on the quantum of sentence was deferred, so as to enable the respondents/contemnors to either enter into an amicable settlement with the petitioner or to comply with the orders passed by this Court and the High Court, of which they are held guilty for wilful disobedience. 3. Thereafter, Shri Vikas Singh, learned counsel appearing on behalf of the respondents/contemnors was called upon by the Court with regard to the latest developments which might have a bearing on the imposing of a suitable sentence. Shri Vikas Singh, learned counsel appearing on behalf of the respondents/contemnors stated at the Bar that though the respondents/contemnors have tried to settle the dispute amicably with the petitioner, but there is no final settlement arrived at between the parties. The fact remains that even after the respondents are held guilty for wilful disobedience of the orders passed by this Court as well as the High Court vide judgment and order dated 10.03.2022, and even thereafter giving sufficient opportunities to the respondents/contemnors to either comply with the orders of this Court and the High Court, of which wilful disobedience is proved and they are held liable to be punished suitably under the provisions of the Contempt of Courts Act, or to settle the dispute amicably with the petitioner herein, neither the respondents/contemnors have complied with the orders passed by this Court as well as the High Court nor have they settled the dispute amicably. | 1[ds]2. We have heard Shri Vikas Singh, learned Senior Advocate appearing on behalf of the contemnors on the quantum of sentence. However, at his request, the order on the quantum of sentence was deferred, so as to enable the respondents/contemnors to either enter into an amicable settlement with the petitioner or to comply with the orders passed by this Court and the High Court, of which they are held guilty for wilful disobedience.The fact remains that even after the respondents are held guilty for wilful disobedience of the orders passed by this Court as well as the High Court vide judgment and order dated 10.03.2022, and even thereafter giving sufficient opportunities to the respondents/contemnors to either comply with the orders of this Court and the High Court, of which wilful disobedience is proved and they are held liable to be punished suitably under the provisions of the Contempt of Courts Act, or to settle the dispute amicably with the petitioner herein, neither the respondents/contemnors have complied with the orders passed by this Court as well as the High Court nor have they settled the dispute amicably. | 1 | 458 | 202 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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M.R. SHAH, J. 1. Vide detailed judgment and order dated 10.03.2022 passed in the aforesaid Contempt Petition, this Court held the respondents guilty, more particularly, respondent No.1 herein – Dharmesh S. Jain, for the contempt of this Court for wilful disobedience of the order dated 28.10.2021 passed by this Court in Miscellaneous Application No. 1668 of 2021 in Special Leave Petition (Civil) No. 14724/2021, as also, for wilful disobedience of the order passed by the High Court dated 08.08.2019 in Notice of Motion No. 960 of 2019 in Commercial Arbitration Petition No. 55 of 2019 and the respondents herein rendered themselves liable for suitable punishment under the provisions of the Contempt of Courts Act. By the aforesaid judgment and order dated 10.03.2022, the respondents/contemnors were required to be heard on the quantum of sentence. Accordingly, on 22.03.2022, the matter was placed before the Bench for further hearing on the quantum of sentence. 2. We have heard Shri Vikas Singh, learned Senior Advocate appearing on behalf of the contemnors on the quantum of sentence. However, at his request, the order on the quantum of sentence was deferred, so as to enable the respondents/contemnors to either enter into an amicable settlement with the petitioner or to comply with the orders passed by this Court and the High Court, of which they are held guilty for wilful disobedience. 3. Thereafter, Shri Vikas Singh, learned counsel appearing on behalf of the respondents/contemnors was called upon by the Court with regard to the latest developments which might have a bearing on the imposing of a suitable sentence. Shri Vikas Singh, learned counsel appearing on behalf of the respondents/contemnors stated at the Bar that though the respondents/contemnors have tried to settle the dispute amicably with the petitioner, but there is no final settlement arrived at between the parties. The fact remains that even after the respondents are held guilty for wilful disobedience of the orders passed by this Court as well as the High Court vide judgment and order dated 10.03.2022, and even thereafter giving sufficient opportunities to the respondents/contemnors to either comply with the orders of this Court and the High Court, of which wilful disobedience is proved and they are held liable to be punished suitably under the provisions of the Contempt of Courts Act, or to settle the dispute amicably with the petitioner herein, neither the respondents/contemnors have complied with the orders passed by this Court as well as the High Court nor have they settled the dispute amicably.
### Response:
1
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2. We have heard Shri Vikas Singh, learned Senior Advocate appearing on behalf of the contemnors on the quantum of sentence. However, at his request, the order on the quantum of sentence was deferred, so as to enable the respondents/contemnors to either enter into an amicable settlement with the petitioner or to comply with the orders passed by this Court and the High Court, of which they are held guilty for wilful disobedience.The fact remains that even after the respondents are held guilty for wilful disobedience of the orders passed by this Court as well as the High Court vide judgment and order dated 10.03.2022, and even thereafter giving sufficient opportunities to the respondents/contemnors to either comply with the orders of this Court and the High Court, of which wilful disobedience is proved and they are held liable to be punished suitably under the provisions of the Contempt of Courts Act, or to settle the dispute amicably with the petitioner herein, neither the respondents/contemnors have complied with the orders passed by this Court as well as the High Court nor have they settled the dispute amicably.
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Hari Datt Kainthla & Anr Vs. State Of Himachal Pradesh & Ors | judicial service under the District Judge. Appellants contend that promotion of respondents 6 and 7 from the rank of subordinate judge to the selection grade post of subordinate judge is invalid as being in contravention first of the memorandum and secondly such promotion must only be on the basis of merit and not seniority. This contention must fail because no statutory rule is pointed out as to how the promotion was to be given and the High Court having given the promotion it was most competent to do so. The challenge must accordingly fail.Appellants also contended that even if the criterion for recommendation for promotion to the post of DSJ/ADSJ is seniority-cum-merit, respondents 3, 4 and 5 did not deserve to be promoted because their unfitness stares in the face inasmuch as they were not considered suitable for confirmation as subordinate judge as and when their turn came for confirmation and that would show that they were not men of merits. It was pointed out that respondents 4 and 5 were not confirmed due to their unsatisfactory performance in discharge of duties while their colleagues in the same batch were confirmed earlier. It was further pointed out that respondent 4 was not even allowed to cross the efficiency bar for a period of about 10 years and that he was allowed to cross it for the first time in 1970. These averments have hardly any relevance. The power to confirm any one in the subordinate judicial service vests in the High Court in exercise of the control vested in the High Court under Art. 235. In fact the power to promote to various posts in the subordinate judicial service under the District Judge comprehends also the power to confirm and that vests in the High Court. It is not necessary to dilate on this point because it is concluded by a decision of this Court in State of Assam &Anr. v. S. N. Sen &Anr., wherein this Court held that under Art 235 of the Constitution the power of promotion o f persons holding posts inferior to that of the District Judge being in the High Court, the power to confirm such promotees is also in the High Court and any rule in conflict with Art. 235 must be held to be invalid. This view was affirmed in Stat e of Bihar v. Madan Mohan Prasad &Ors. This Court held that since Art. 235 of the Constitution vests the power of confirmation in the High Court, the power of determining the seniority in the service is also with the High Court. Of course, in doing so the High Court is bound to act in conformity with any rules made by the Governor under the provisions of Art. 309 of the Constitution, if there be a rule.The administrative side of the High Court having chosen not to participate in the proceedings this Court must dispose of the appeal on the scanty material available on record. On the available material the appellants failed to establish violation of any existing rule, statutory or otherwise, governing promotion of persons to the post of DSJ/ADSJ as there is no such rule. The impugned appointments appear to have been made by promotion of those belonging to subordinate judicial service by the Governor on the recommendation of the High Court as envisaged by Art. 233 and in the absence of any other valid rule, promotions made on the generally well accepted principle of seniority-cum- merit appear to be valid. There is, therefore, no substance in the contention that the promotion of respondents 3, 4 and 5 to the post of DSJ/ADSJ and the promotion of respondents 6 and 7 to the selection grade post were in any manner invalid.18. Before we conclude it must be pointed out that where the Government acts on the recommendation of the High Court and the action of the Government is challenged by way of a writ petition, in order to facilitate appreciation of issues raised, the administrative side of the High Court, if joined as a party, must appear and place before the Court the entire record for a fair and judicial adjudication of the issues on the judicial side of the High Court. In this case the appellants in their writ petition requested the High Court to produce the proceedings which culminated in the recommendation of the High Court to the Governor for appointment of respondents 3, 4 and 5 as DSJ/ADSJ. No action appears to have been taken on this request because no such record appears to have been produced before the High Court. Such silence militates against fair adjudication of the issues. Just and fair adjudication must not only inform the administrative side of the High Court but in order to put its record beyond the slightest pale of controversy it must avoid any secrecy in this behalf consistent with public interest.If the High Court felt that the criterion for promotion to the post of District Judge being a post of status and responsibility in the judicial hierarchy must only be merit, seniority having no or very little place, it was incumbent upon the High Court to propose such a rule to be made under Art. 309 or adopt to itself such a rule and conform to it. But if the High Court on the one hand recommended respondents 3, 4 and 5 according to their seniority as it appears to be the case, when the vacancies occurred and accepted their appointment and on the other hand when such appointments were challenged it went in search of a principle on the basis of which promotion to the post of DSJ/ADSJ should be given, it is rather difficult to reconcile these diametrically opposite actions. The High Court also was in error in proceeding to reject the appellants petition without recording a finding regarding the basis on which recommendations were made by it. We have, however, on the basis of the material before us tried to resolve the said question.19. | 0[ds]We find it a bit difficult to follow and appreciate how the High Court could proceed on such a fruitless and bizarre enquiry unconnected with and wholly unnecessary in the fact of the case before it. The same High Court on its administrative side must have known its own mind when while making recommendation for promotion, the principle or criterion it adopted. The High Court must be presumably aware even while making recommendation for promotion to the post of DSJ/ADSJ that it was a responsible post and merit alone must guide it in making recommendation. Presumably the full court made the recommendation. The High Court took notice of the fact that there were no rules at the relevant time in Himachal Pradesh formulating the principle or criterion on which such promotion as Distt. Judge was to be recommended. If thus there was no rule and the High Court proceeded to adoptfitness as a criterion for recommending promotions from subordinate judges to the post of district judge neither of which appears to violate either Art. 233 or Art. 16 or any other constitutional mandate or any statutory rule, it would be futile to proceed to examine what ought or possible criterion should really govern the decision for recommending persons from subordinate judicial service for promotion to the post of DSJ/ADSJ. If the High Court felt that the post of district judge is a very responsible post and merit alone should govern promotion from subordinate judicial service to the post of district judge it was incumbent upon the High Court to propose necessary rules and get them enacted under Art. 309. That appears not to have been done. Alternatively, High Court should while making recommendation for promotion put the principle ofseniority in the forefront and act accordingly. The High Court and the Governor appear to be agreed that the recommendation for promotion made was proper and the same was accepted without a demur. In our opinion it is then futile to examine what ought to be the criterion for such promotion, unless there is no discrenible principle on which recommendation can be justified or the recommendation is attacked as arbitrary, malafide or vitiated by bias. There is no suchis difficult to appreciate how such a principle can be enunciated in abstract. If for regulating recruitment and conditions of service of district judges it was considered essential by the High Court that promotion to the post of District Judge from the subordinate judicial service shall be on merit alone and seniority having no place in the consideration unless two are considered equally meritorious, it was incumbent upon the High Court to have proposed such a rule to be enacted under Art. 309. Neither the High Court nor the Government have proposed such rules. And surprisingly, after reaching this conclusion the High Court rejected the writ petition, frankly, on an untenable ground that the petitioners have failed to show that if they had been considered at the time when the impugned promotions were made they would have stood a fair choice of being preferred over respondents 3, 4 and 5. This is an unsustainable conclusion. If the High Court is otherwise right that when promotion is to be given on the criterion of merit alone, all those in the zone of selection or field of eligibility must be simultaneously considered and the best among them should be selected and recommended for promotion. The silence of the High Court on the most important question as to what criterion it adopted while formulating its recommendation coupled with the fact that those at the top of gradation list according to their seniority were recommended is eloquent enough to conclude that principle ofwas adopted by the High Court. What the High Court appears to have done is as and when the vacancy occurred the seniormost in the cadre of subordinate judges was considered and if found fit was recommended. The present grievance is by persons junior to respondents 3, 4 and 5 whose promotion is questioned and the grievance is that they were not considered along with other eligible. It is impossible to expect a person to aver that if along with others eligible he was considered he would have been selected. Right to be considered for selection is distinct from an assertion that if considered the person so considered would of necessity be selected and then alone his grievance that he was not considered even though eligible could be examined by the Court. It is, however, not necessary to dilate on this point because in our opinion as the situation stood at the time of the impugned recommendation for promotion and the consequent appointments made by Governor there was no such rule providing merit alone as the criterion for promotion and the High Court, though it does not reveal its mind, ap pears to have proceeded on the criterion ofwhich is a valid criterion under Art. 16 and not violative of Art. 233 and the appellants, therefore, who were junior to respondents 3, 4 and 5, cannot be heard to make a grievance about the promotion of respondents 3, 4 and 5 who as and when their turn came were considered and on being found fit were recommended for promotion and the Governor appointed them.It was, however, said that Office Memorandum No. F.1/4/55RPS dated May 16, 1957, issued by the Government of India, Ministry of Home Affairs, was applicable to the services including subordinate judicial service under the Union Territory of Himachal Pradesh before it attained statehood and that even if an office memorandum of the Government of India may not be directly applicable, it appears to have been adopted by the Union Territory of Himachal Pradesh because the same was issued by the Assistant Secretary to the Himachal Pradesh Administration as per his Memorandum No. Apptt.1/350/57, dated June 15, 1957, with a request that the contents of the Memorandum may also be brought to the notice of each member of the Departmental Promotion Committee for Class I, II and III posts constituted for each Department under the Union Territory of Himachalis nothing to show that that office memorandum was endorsed to the High Court and that the Administration suggested that the High Court should adopt it while making recommendations for promotion to the post of DSJ/ADSJ. In the absence of a return by the High Court to writ petition it is difficult to say whether the Administration desired that the guidelines prescribed in the memorandum should also be accepted or adopted by the HighHigh Court disposed of the memorandum by a cryptic observation that there has been a serious debate before the Court on the question whether the direction contained in the aforesaid memorandum had to be complied with by the High Court and the State Government when the impugned appointments were made. After noting this debate the High Court did not proceed to dispose of the contention and did not record a finding whether the memorandum was or was not required to be complied with by the High Court while making recommendations for promotion to the posts of DSJ/ADSJ. In the absence of any material as to whether the memorandum was endorsed to the High Court or whether the High Court adopted or acted upon the same or not it is difficult to accept that it was binding on the High Court and any recommendation for promotion made in breach or contravention thereof would render the promotion invalid. Even apart from this, the impugned promotions were made on May 18, 1971, after Himachal Pradesh became a full fledged State with a High Court at the apex of judicial and the memorandum would cease to have any force or bindingfor rejecting the efficacy of memorandum in relation to promotion to the post of DSJ/ADSJ will mutatis mutandis apply and the contention will have to be negatived. This contention must also be negatived for the additional reason that promotion from the post of subordinate judge to the selection grade post of subordinate judge is a promotion from one post in subordinate judicial service to another post in the same service. This promotion would definitely be under the control of the High Court as provided in Art. 235 of the Constitution. No statutory rule was pointed out as to how such promotion was to be given. In t he absence of a statutory rule the High Court would be the sole authority to decide the question of promotion in exercise of its control under Art. 235. By Art. 235 the High Court has been vested with complete control over the subordinate courts and this exercise of control comprehends the power to decide eligibility for promotion from one post in the subordinate judicial service to higher post in the same service except where one reaches the stage of giving promotion as DSJ/ADSJ when Art. 233 would be attracted and the power to give promotion would be in Governor hedged in with the condition that the Governor can act after consultation with the High Court which has been understood to mean on the recommendation of the High Court. But when it comes to promotion in the judicial service under the Distt. Judge the High Court would be the sole authority to decide the question of promotion (see The High Court, Calcutta v. Amal Kumar Roy). This becomes manifestly clear from State of Assam &Anr. v. Kuseswar Saikia &Ors. In that case one Upendra Nath Rajkhowa was promoted by the Governor as Addl. District Judge purporting to act under Art. 233 and a writ of quo warranto was sought challenging the appointment on the ground that the promotion as Addl. District Judge could only be made by the High Court acting under Art. 235. It was also contended that his further appointment as District Judge by the Governor would be void. It was so held by the Highthus becomes crystal clear that while promotion to the post of District Judge which includes various posts as set out in Art. 236, is with the Governor, the High Court alone would be competent to decide the promotion from one post in subordinate judicial service to any higher post in subordinate judicial service under the Districtcontention must fail because no statutory rule is pointed out as to how the promotion was to be given and the High Court having given the promotion it was most competent to do so. The challenge must accordinglyaverments have hardly any relevance. The power to confirm any one in the subordinate judicial service vests in the High Court in exercise of the control vested in the High Court under Art. 235. In fact the power to promote to various posts in the subordinate judicial service under the District Judge comprehends also the power to confirm and that vests in the High Court. It is not necessary to dilate on this point because it is concluded by a decision of this Court in State of Assam &Anr. v. S. N. Sen &Anr., wherein this Court held that under Art 235 of the Constitution the power of promotion o f persons holding posts inferior to that of the District Judge being in the High Court, the power to confirm such promotees is also in the High Court and any rule in conflict with Art. 235 must be held to be invalid. This view was affirmed in Stat e of Bihar v. Madan Mohan Prasad &Ors. This Court held that since Art. 235 of the Constitution vests the power of confirmation in the High Court, the power of determining the seniority in the service is also with the High Court. Of course, in doing so the High Court is bound to act in conformity with any rules made by the Governor under the provisions of Art. 309 of the Constitution, if there be a rule.The administrative side of the High Court having chosen not to participate in the proceedings this Court must dispose of the appeal on the scanty material available on record. On the available material the appellants failed to establish violation of any existing rule, statutory or otherwise, governing promotion of persons to the post of DSJ/ADSJ as there is no such rule. The impugned appointments appear to have been made by promotion of those belonging to subordinate judicial service by the Governor on the recommendation of the High Court as envisaged by Art. 233 and in the absence of any other valid rule, promotions made on the generally well accepted principle ofmerit appear to be valid. There is, therefore, no substance in the contention that the promotion of respondents 3, 4 and 5 to the post of DSJ/ADSJ and the promotion of respondents 6 and 7 to the selection grade post were in any mannerwe conclude it must be pointed out that where the Government acts on the recommendation of the High Court and the action of the Government is challenged by way of a writ petition, in order to facilitate appreciation of issues raised, the administrative side of the High Court, if joined as a party, must appear and place before the Court the entire record for a fair and judicial adjudication of the issues on the judicial side of the High Court. In this case the appellants in their writ petition requested the High Court to produce the proceedings which culminated in the recommendation of the High Court to the Governor for appointment of respondents 3, 4 and 5 as DSJ/ADSJ. No action appears to have been taken on this request because no such record appears to have been produced before the High Court. Such silence militates against fair adjudication of the issues. Just and fair adjudication must not only inform the administrative side of the High Court but in order to put its record beyond the slightest pale of controversy it must avoid any secrecy in this behalf consistent with public interest.If the High Court felt that the criterion for promotion to the post of District Judge being a post of status and responsibility in the judicial hierarchy must only be merit, seniority having no or very little place, it was incumbent upon the High Court to propose such a rule to be made under Art. 309 or adopt to itself such a rule and conform to it. But if the High Court on the one hand recommended respondents 3, 4 and 5 according to their seniority as it appears to be the case, when the vacancies occurred and accepted their appointment and on the other hand when such appointments were challenged it went in search of a principle on the basis of which promotion to the post of DSJ/ADSJ should be given, it is rather difficult to reconcile these diametrically opposite actions. The High Court also was in error in proceeding to reject the appellants petition without recording a finding regarding the basis on which recommendations were made by it. We have, however, on the basis of the material before us tried to resolve the said question. | 0 | 6,525 | 2,656 | ### 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:
judicial service under the District Judge. Appellants contend that promotion of respondents 6 and 7 from the rank of subordinate judge to the selection grade post of subordinate judge is invalid as being in contravention first of the memorandum and secondly such promotion must only be on the basis of merit and not seniority. This contention must fail because no statutory rule is pointed out as to how the promotion was to be given and the High Court having given the promotion it was most competent to do so. The challenge must accordingly fail.Appellants also contended that even if the criterion for recommendation for promotion to the post of DSJ/ADSJ is seniority-cum-merit, respondents 3, 4 and 5 did not deserve to be promoted because their unfitness stares in the face inasmuch as they were not considered suitable for confirmation as subordinate judge as and when their turn came for confirmation and that would show that they were not men of merits. It was pointed out that respondents 4 and 5 were not confirmed due to their unsatisfactory performance in discharge of duties while their colleagues in the same batch were confirmed earlier. It was further pointed out that respondent 4 was not even allowed to cross the efficiency bar for a period of about 10 years and that he was allowed to cross it for the first time in 1970. These averments have hardly any relevance. The power to confirm any one in the subordinate judicial service vests in the High Court in exercise of the control vested in the High Court under Art. 235. In fact the power to promote to various posts in the subordinate judicial service under the District Judge comprehends also the power to confirm and that vests in the High Court. It is not necessary to dilate on this point because it is concluded by a decision of this Court in State of Assam &Anr. v. S. N. Sen &Anr., wherein this Court held that under Art 235 of the Constitution the power of promotion o f persons holding posts inferior to that of the District Judge being in the High Court, the power to confirm such promotees is also in the High Court and any rule in conflict with Art. 235 must be held to be invalid. This view was affirmed in Stat e of Bihar v. Madan Mohan Prasad &Ors. This Court held that since Art. 235 of the Constitution vests the power of confirmation in the High Court, the power of determining the seniority in the service is also with the High Court. Of course, in doing so the High Court is bound to act in conformity with any rules made by the Governor under the provisions of Art. 309 of the Constitution, if there be a rule.The administrative side of the High Court having chosen not to participate in the proceedings this Court must dispose of the appeal on the scanty material available on record. On the available material the appellants failed to establish violation of any existing rule, statutory or otherwise, governing promotion of persons to the post of DSJ/ADSJ as there is no such rule. The impugned appointments appear to have been made by promotion of those belonging to subordinate judicial service by the Governor on the recommendation of the High Court as envisaged by Art. 233 and in the absence of any other valid rule, promotions made on the generally well accepted principle of seniority-cum- merit appear to be valid. There is, therefore, no substance in the contention that the promotion of respondents 3, 4 and 5 to the post of DSJ/ADSJ and the promotion of respondents 6 and 7 to the selection grade post were in any manner invalid.18. Before we conclude it must be pointed out that where the Government acts on the recommendation of the High Court and the action of the Government is challenged by way of a writ petition, in order to facilitate appreciation of issues raised, the administrative side of the High Court, if joined as a party, must appear and place before the Court the entire record for a fair and judicial adjudication of the issues on the judicial side of the High Court. In this case the appellants in their writ petition requested the High Court to produce the proceedings which culminated in the recommendation of the High Court to the Governor for appointment of respondents 3, 4 and 5 as DSJ/ADSJ. No action appears to have been taken on this request because no such record appears to have been produced before the High Court. Such silence militates against fair adjudication of the issues. Just and fair adjudication must not only inform the administrative side of the High Court but in order to put its record beyond the slightest pale of controversy it must avoid any secrecy in this behalf consistent with public interest.If the High Court felt that the criterion for promotion to the post of District Judge being a post of status and responsibility in the judicial hierarchy must only be merit, seniority having no or very little place, it was incumbent upon the High Court to propose such a rule to be made under Art. 309 or adopt to itself such a rule and conform to it. But if the High Court on the one hand recommended respondents 3, 4 and 5 according to their seniority as it appears to be the case, when the vacancies occurred and accepted their appointment and on the other hand when such appointments were challenged it went in search of a principle on the basis of which promotion to the post of DSJ/ADSJ should be given, it is rather difficult to reconcile these diametrically opposite actions. The High Court also was in error in proceeding to reject the appellants petition without recording a finding regarding the basis on which recommendations were made by it. We have, however, on the basis of the material before us tried to resolve the said question.19.
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the High Court which has been understood to mean on the recommendation of the High Court. But when it comes to promotion in the judicial service under the Distt. Judge the High Court would be the sole authority to decide the question of promotion (see The High Court, Calcutta v. Amal Kumar Roy). This becomes manifestly clear from State of Assam &Anr. v. Kuseswar Saikia &Ors. In that case one Upendra Nath Rajkhowa was promoted by the Governor as Addl. District Judge purporting to act under Art. 233 and a writ of quo warranto was sought challenging the appointment on the ground that the promotion as Addl. District Judge could only be made by the High Court acting under Art. 235. It was also contended that his further appointment as District Judge by the Governor would be void. It was so held by the Highthus becomes crystal clear that while promotion to the post of District Judge which includes various posts as set out in Art. 236, is with the Governor, the High Court alone would be competent to decide the promotion from one post in subordinate judicial service to any higher post in subordinate judicial service under the Districtcontention must fail because no statutory rule is pointed out as to how the promotion was to be given and the High Court having given the promotion it was most competent to do so. The challenge must accordinglyaverments have hardly any relevance. The power to confirm any one in the subordinate judicial service vests in the High Court in exercise of the control vested in the High Court under Art. 235. In fact the power to promote to various posts in the subordinate judicial service under the District Judge comprehends also the power to confirm and that vests in the High Court. It is not necessary to dilate on this point because it is concluded by a decision of this Court in State of Assam &Anr. v. S. N. Sen &Anr., wherein this Court held that under Art 235 of the Constitution the power of promotion o f persons holding posts inferior to that of the District Judge being in the High Court, the power to confirm such promotees is also in the High Court and any rule in conflict with Art. 235 must be held to be invalid. This view was affirmed in Stat e of Bihar v. Madan Mohan Prasad &Ors. This Court held that since Art. 235 of the Constitution vests the power of confirmation in the High Court, the power of determining the seniority in the service is also with the High Court. Of course, in doing so the High Court is bound to act in conformity with any rules made by the Governor under the provisions of Art. 309 of the Constitution, if there be a rule.The administrative side of the High Court having chosen not to participate in the proceedings this Court must dispose of the appeal on the scanty material available on record. On the available material the appellants failed to establish violation of any existing rule, statutory or otherwise, governing promotion of persons to the post of DSJ/ADSJ as there is no such rule. The impugned appointments appear to have been made by promotion of those belonging to subordinate judicial service by the Governor on the recommendation of the High Court as envisaged by Art. 233 and in the absence of any other valid rule, promotions made on the generally well accepted principle ofmerit appear to be valid. There is, therefore, no substance in the contention that the promotion of respondents 3, 4 and 5 to the post of DSJ/ADSJ and the promotion of respondents 6 and 7 to the selection grade post were in any mannerwe conclude it must be pointed out that where the Government acts on the recommendation of the High Court and the action of the Government is challenged by way of a writ petition, in order to facilitate appreciation of issues raised, the administrative side of the High Court, if joined as a party, must appear and place before the Court the entire record for a fair and judicial adjudication of the issues on the judicial side of the High Court. In this case the appellants in their writ petition requested the High Court to produce the proceedings which culminated in the recommendation of the High Court to the Governor for appointment of respondents 3, 4 and 5 as DSJ/ADSJ. No action appears to have been taken on this request because no such record appears to have been produced before the High Court. Such silence militates against fair adjudication of the issues. Just and fair adjudication must not only inform the administrative side of the High Court but in order to put its record beyond the slightest pale of controversy it must avoid any secrecy in this behalf consistent with public interest.If the High Court felt that the criterion for promotion to the post of District Judge being a post of status and responsibility in the judicial hierarchy must only be merit, seniority having no or very little place, it was incumbent upon the High Court to propose such a rule to be made under Art. 309 or adopt to itself such a rule and conform to it. But if the High Court on the one hand recommended respondents 3, 4 and 5 according to their seniority as it appears to be the case, when the vacancies occurred and accepted their appointment and on the other hand when such appointments were challenged it went in search of a principle on the basis of which promotion to the post of DSJ/ADSJ should be given, it is rather difficult to reconcile these diametrically opposite actions. The High Court also was in error in proceeding to reject the appellants petition without recording a finding regarding the basis on which recommendations were made by it. We have, however, on the basis of the material before us tried to resolve the said question.
|
Parle Bisleri Pvt. Ltd Vs. Commr.Of Customs & Central Ex.,Ahmedabad | the same. The factors which have weighed with CEGAT like registration of three companies under the sales tax and income tax authorities have to be considered in the background of factual position notedabove. When the corporate veil is lifted what comes into focus is only the shadow and not any substance about the existence of the three companies independently. The circular No. 6/92 dated 29.5.1992 has no relevance because it related to notification No. 175/86-CE dated 1.3.1986 and did not relate to notification No. 1/93. 12. What this Court was emphasizing in the aforesaid decision was not only the fact that Circular 6/92 has no effect uponcommencement of Notification No. 1/93, but also the fact thatthe distinct legal nature of Companies cannot be used aseye-wash to portray its independent nature. Where thecompanies are indeed interdependent and possibly even related through financial control and management, the value ofclearances has to be clubbed together in the interests of justice.The operation of Circular 6/92 admittedly protected entities likethe appellant prior to the commencement of Notification No. 1/93, but certainly not after the same. In this case, this Court has been presented with a preponderance of evidence to suggestthat the companies are related not only in terms of financialcontrol, but also through management personnel. In Modi Alkalies & Chemicals Ltd. & Ors. (supra) this Court has heldthat two basic features which prima facie show interdependenceare pervasive financial control and management control. We, therefore, proceed to apply the said two tests to the facts of this case. 13. R. Chauhan, P. Chauhan, R.N. Mungale and S.K. Motani, whoare the directors of the appellant herein are among those who also serve on the Board of Directors in M/s. PEL Ltd. and M/s. PIL Ltd. It is also a fact on record that that M/s. PEL advanced an interest-free loan of Rs. 1 crore to the appellant, which was used for purchase of raw material by the latter (As evidenced from the balance sheet). Furthermore, the flavours being manufactured by the appellant were developed by M/s. PEL at their R & D Lab at Bombay, whose services were at the disposal of the appellant. They were at one point of time were manufactured by M/s. PEL and admittedly owned by them. Clearly, all this points to the inescapable conclusion that the three companies in question were intertwined in their operationand management. A careful scrutiny of the records thereforeestablish that both the aforesaid two basic features areoverwhelmingly present in this case. Therefore it would likelyseem that the purported fragmentation of the manufacturingprocess was but a mere ploy to avail of the SSI exemption.Piercing the corporate veil, when the notions of beneficialownership and interdependency come into the picture, are nolonger res integra. On this count, therefore, we have no hesitation whatsoever in affirming the order of the Tribunal, which was justified entirely through the precedent set by this Court. Issue II 14. The second issue concerns the question whether the ‘codenames’ used to denote soft drink flavours manufactured by theappellant could in fact be termed as ‘brand names’ and if so,whether they belonged to another entity. The yardstick in this regard is Explanation VIII which is pari materia in bothNotifications No. 175/86 and No. 1/93 and reads as: Explanation VIII—”Brand name” or “trade name” shall mean a brand name or trade name, whether registered or not, that is to say a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person. We are not convinced by the argument of the appellant that thisExplanation refers only to ‘brand names’ and cannot be used todetermine whether code names, as used by the appellant in thepresent case, fall within the said category. The mere difference innomenclature cannot take away the import of the Explanationfrom its applicability to the present case. The appellant hereinmanufactures flavours which fall within the ambit of the ‘codenames’ and it is a fact on record that these codes are key toidentifying the flavours which are commercially transferable.15. Furthermore, it is expressly clear that the code names on the flavours indicate a connection in the course of trade between the specified goods and such person using such name or mark.The flavours in question, which were earlier manufactured byM/s. PEL Ltd. and supplied to the franchise holders, weresubsequently allowed to be made by the appellant. Thefranchise holders were in effect buying the very same flavoursfrom the appellant and were placing orders by referring to thesame code name, as is evident from the respective purchaseorders. The users of the flavours, i.e. M/s. PEL Ltd., M/s. PILLtd. and specified bottlers are all interconnected since the lattergroup comprises franchisees of PEL and thus there is morethan an iota of evidence to prove the connection in the course oftrade between the flavours and the entity using the flavoursthrough code names. Furthermore, the ownership of the codenames by M/s. PEL Ltd. is clearly evidenced from the fact thatthese flavours were developed, researched and concocted byM/s. PEL Ltd in its research labs. That M/s. PEL Ltd. havegiven the brand names to the flavours and allowed them to bemanufactured by the appellant, their holding company cannothide the fact that M/s. PEL Ltd were in fact, the owner of thecode/brand names. This conclusion is fortified by the fact that it was M/s. PEL Ltd who transferred the right of the codes whenthey were sold to M/s. Coca Cola Company in November, 1993.Since the appellant was not the owner of the said brand namesin question, the Tribunal was justified in holding that theappellant will not be entitled to the benefit of Notification Nos. 175/86 and 1/93 for the products with code names G-44T, L-33A, T-I IPC, T-IIP, R-66M and K-55T which belonged to M/s.PEL Ltd. | 0[ds]13. R. Chauhan, P. Chauhan, R.N. Mungale and S.K. Motani, whoare the directors of the appellant herein are among those who also serve on the Board of Directors in M/s. PEL Ltd. and M/s. PIL Ltd. It is also a fact on record that that M/s. PEL advanced an interest-free loan of Rs. 1 crore to the appellant, which was used for purchase of raw material by the latter (As evidenced from the balance sheet). Furthermore, the flavours being manufactured by the appellant were developed by M/s. PEL at their R & D Lab at Bombay, whose services were at the disposal of the appellant. They were at one point of time were manufactured by M/s. PEL and admittedly owned by them. Clearly, all this points to the inescapable conclusion that the three companies in question were intertwined in their operationand management. A careful scrutiny of the records thereforeestablish that both the aforesaid two basic features areoverwhelmingly present in this case. Therefore it would likelyseem that the purported fragmentation of the manufacturingprocess was but a mere ploy to avail of the SSI exemption.Piercing the corporate veil, when the notions of beneficialownership and interdependency come into the picture, are nolonger res integra. On this count, therefore, we have no hesitation whatsoever in affirming the order of the Tribunal, which was justified entirely through the precedent set by thisare not convinced by the argument of the appellant that thisExplanation refers only to ‘brandand cannot be used todetermine whether code names, as used by the appellant in thepresent case, fall within the said category. The mere difference innomenclature cannot take away the import of the Explanationfrom its applicability to the present case. The appellant hereinmanufactures flavours which fall within the ambit of theand it is a fact on record that these codes are key toidentifying the flavours which are commercially transferable.15. Furthermore, it is expressly clear that the code names on the flavours indicate a connection in the course of trade between the specified goods and such person using such name or mark.The flavours in question, which were earlier manufactured byM/s. PEL Ltd. and supplied to the franchise holders, weresubsequently allowed to be made by the appellant. Thefranchise holders were in effect buying the very same flavoursfrom the appellant and were placing orders by referring to thesame code name, as is evident from the respective purchaseorders. The users of the flavours, i.e. M/s. PEL Ltd., M/s. PILLtd. and specified bottlers are all interconnected since the lattergroup comprises franchisees of PEL and thus there is morethan an iota of evidence to prove the connection in the course oftrade between the flavours and the entity using the flavoursthrough code names. Furthermore, the ownership of the codenames by M/s. PEL Ltd. is clearly evidenced from the fact thatthese flavours were developed, researched and concocted byM/s. PEL Ltd in its research labs. That M/s. PEL Ltd. havegiven the brand names to the flavours and allowed them to bemanufactured by the appellant, their holding company cannothide the fact that M/s. PEL Ltd were in fact, the owner of thecode/brand names. This conclusion is fortified by the fact that it was M/s. PEL Ltd who transferred the right of the codes whenthey were sold to M/s. Coca Cola Company in November, 1993.Since the appellant was not the owner of the said brand namesin question, the Tribunal was justified in holding that theappellant will not be entitled to the benefit of Notification Nos. 175/86 and 1/93 for the products with code names G-44T, L-33A, T-IIPC, T-IIP, R-66M and K-55T which belonged to M/s.PEL Ltd. | 0 | 2,915 | 670 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
the same. The factors which have weighed with CEGAT like registration of three companies under the sales tax and income tax authorities have to be considered in the background of factual position notedabove. When the corporate veil is lifted what comes into focus is only the shadow and not any substance about the existence of the three companies independently. The circular No. 6/92 dated 29.5.1992 has no relevance because it related to notification No. 175/86-CE dated 1.3.1986 and did not relate to notification No. 1/93. 12. What this Court was emphasizing in the aforesaid decision was not only the fact that Circular 6/92 has no effect uponcommencement of Notification No. 1/93, but also the fact thatthe distinct legal nature of Companies cannot be used aseye-wash to portray its independent nature. Where thecompanies are indeed interdependent and possibly even related through financial control and management, the value ofclearances has to be clubbed together in the interests of justice.The operation of Circular 6/92 admittedly protected entities likethe appellant prior to the commencement of Notification No. 1/93, but certainly not after the same. In this case, this Court has been presented with a preponderance of evidence to suggestthat the companies are related not only in terms of financialcontrol, but also through management personnel. In Modi Alkalies & Chemicals Ltd. & Ors. (supra) this Court has heldthat two basic features which prima facie show interdependenceare pervasive financial control and management control. We, therefore, proceed to apply the said two tests to the facts of this case. 13. R. Chauhan, P. Chauhan, R.N. Mungale and S.K. Motani, whoare the directors of the appellant herein are among those who also serve on the Board of Directors in M/s. PEL Ltd. and M/s. PIL Ltd. It is also a fact on record that that M/s. PEL advanced an interest-free loan of Rs. 1 crore to the appellant, which was used for purchase of raw material by the latter (As evidenced from the balance sheet). Furthermore, the flavours being manufactured by the appellant were developed by M/s. PEL at their R & D Lab at Bombay, whose services were at the disposal of the appellant. They were at one point of time were manufactured by M/s. PEL and admittedly owned by them. Clearly, all this points to the inescapable conclusion that the three companies in question were intertwined in their operationand management. A careful scrutiny of the records thereforeestablish that both the aforesaid two basic features areoverwhelmingly present in this case. Therefore it would likelyseem that the purported fragmentation of the manufacturingprocess was but a mere ploy to avail of the SSI exemption.Piercing the corporate veil, when the notions of beneficialownership and interdependency come into the picture, are nolonger res integra. On this count, therefore, we have no hesitation whatsoever in affirming the order of the Tribunal, which was justified entirely through the precedent set by this Court. Issue II 14. The second issue concerns the question whether the ‘codenames’ used to denote soft drink flavours manufactured by theappellant could in fact be termed as ‘brand names’ and if so,whether they belonged to another entity. The yardstick in this regard is Explanation VIII which is pari materia in bothNotifications No. 175/86 and No. 1/93 and reads as: Explanation VIII—”Brand name” or “trade name” shall mean a brand name or trade name, whether registered or not, that is to say a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person. We are not convinced by the argument of the appellant that thisExplanation refers only to ‘brand names’ and cannot be used todetermine whether code names, as used by the appellant in thepresent case, fall within the said category. The mere difference innomenclature cannot take away the import of the Explanationfrom its applicability to the present case. The appellant hereinmanufactures flavours which fall within the ambit of the ‘codenames’ and it is a fact on record that these codes are key toidentifying the flavours which are commercially transferable.15. Furthermore, it is expressly clear that the code names on the flavours indicate a connection in the course of trade between the specified goods and such person using such name or mark.The flavours in question, which were earlier manufactured byM/s. PEL Ltd. and supplied to the franchise holders, weresubsequently allowed to be made by the appellant. Thefranchise holders were in effect buying the very same flavoursfrom the appellant and were placing orders by referring to thesame code name, as is evident from the respective purchaseorders. The users of the flavours, i.e. M/s. PEL Ltd., M/s. PILLtd. and specified bottlers are all interconnected since the lattergroup comprises franchisees of PEL and thus there is morethan an iota of evidence to prove the connection in the course oftrade between the flavours and the entity using the flavoursthrough code names. Furthermore, the ownership of the codenames by M/s. PEL Ltd. is clearly evidenced from the fact thatthese flavours were developed, researched and concocted byM/s. PEL Ltd in its research labs. That M/s. PEL Ltd. havegiven the brand names to the flavours and allowed them to bemanufactured by the appellant, their holding company cannothide the fact that M/s. PEL Ltd were in fact, the owner of thecode/brand names. This conclusion is fortified by the fact that it was M/s. PEL Ltd who transferred the right of the codes whenthey were sold to M/s. Coca Cola Company in November, 1993.Since the appellant was not the owner of the said brand namesin question, the Tribunal was justified in holding that theappellant will not be entitled to the benefit of Notification Nos. 175/86 and 1/93 for the products with code names G-44T, L-33A, T-I IPC, T-IIP, R-66M and K-55T which belonged to M/s.PEL Ltd.
### Response:
0
### Explanation:
13. R. Chauhan, P. Chauhan, R.N. Mungale and S.K. Motani, whoare the directors of the appellant herein are among those who also serve on the Board of Directors in M/s. PEL Ltd. and M/s. PIL Ltd. It is also a fact on record that that M/s. PEL advanced an interest-free loan of Rs. 1 crore to the appellant, which was used for purchase of raw material by the latter (As evidenced from the balance sheet). Furthermore, the flavours being manufactured by the appellant were developed by M/s. PEL at their R & D Lab at Bombay, whose services were at the disposal of the appellant. They were at one point of time were manufactured by M/s. PEL and admittedly owned by them. Clearly, all this points to the inescapable conclusion that the three companies in question were intertwined in their operationand management. A careful scrutiny of the records thereforeestablish that both the aforesaid two basic features areoverwhelmingly present in this case. Therefore it would likelyseem that the purported fragmentation of the manufacturingprocess was but a mere ploy to avail of the SSI exemption.Piercing the corporate veil, when the notions of beneficialownership and interdependency come into the picture, are nolonger res integra. On this count, therefore, we have no hesitation whatsoever in affirming the order of the Tribunal, which was justified entirely through the precedent set by thisare not convinced by the argument of the appellant that thisExplanation refers only to ‘brandand cannot be used todetermine whether code names, as used by the appellant in thepresent case, fall within the said category. The mere difference innomenclature cannot take away the import of the Explanationfrom its applicability to the present case. The appellant hereinmanufactures flavours which fall within the ambit of theand it is a fact on record that these codes are key toidentifying the flavours which are commercially transferable.15. Furthermore, it is expressly clear that the code names on the flavours indicate a connection in the course of trade between the specified goods and such person using such name or mark.The flavours in question, which were earlier manufactured byM/s. PEL Ltd. and supplied to the franchise holders, weresubsequently allowed to be made by the appellant. Thefranchise holders were in effect buying the very same flavoursfrom the appellant and were placing orders by referring to thesame code name, as is evident from the respective purchaseorders. The users of the flavours, i.e. M/s. PEL Ltd., M/s. PILLtd. and specified bottlers are all interconnected since the lattergroup comprises franchisees of PEL and thus there is morethan an iota of evidence to prove the connection in the course oftrade between the flavours and the entity using the flavoursthrough code names. Furthermore, the ownership of the codenames by M/s. PEL Ltd. is clearly evidenced from the fact thatthese flavours were developed, researched and concocted byM/s. PEL Ltd in its research labs. That M/s. PEL Ltd. havegiven the brand names to the flavours and allowed them to bemanufactured by the appellant, their holding company cannothide the fact that M/s. PEL Ltd were in fact, the owner of thecode/brand names. This conclusion is fortified by the fact that it was M/s. PEL Ltd who transferred the right of the codes whenthey were sold to M/s. Coca Cola Company in November, 1993.Since the appellant was not the owner of the said brand namesin question, the Tribunal was justified in holding that theappellant will not be entitled to the benefit of Notification Nos. 175/86 and 1/93 for the products with code names G-44T, L-33A, T-IIPC, T-IIP, R-66M and K-55T which belonged to M/s.PEL Ltd.
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Aman Sharma & Anr Vs. Umesh & Ors | was having one brother Kailash Nath and sister Prakash Lata. The Plaintiffs acquiesced the rights of Defendants No.2 & 3 by not filing suit for cancellation of sale deed after purchase of the subject property and during construction went on for a year. There cannot be any reasonable basis or to have any suspicion and doubt regarding the bonafide purchase of the subject property from the Defendant No.1. The said purchase was after due diligence and on verification of the house tax assessment record of the year 1992-93 as maintained by Municipal Committee, Firozepur City. Water bills and electric bills were all in the name of Defendant No.1. Thus, on the advice of the advocate and after taking loan from the bank, a non-encumbrance certificate was issued and a public notice was published by Defendant No.1-Nand Kishore in the newspaper Aaj Di Awaz, Jalandhar dated 11.01.2016 specifically referring the document of title i.e. Will dated 09.12.1975. The Appellants have also submitted that their rights as bona fide purchaser have been ignored by the Courts below so much so that the decree is silent as to the fate of consideration paid by them leading to unjust enrichment at the cost and peril. Learned counsel for the appellants further urged that Plaintiffs have approached the courts below with unclean hands as they concealed the material facts from the courts below that Krishna Kumar was earlier married to Bimla Rani and out of this wedlock Nand Kishore and Hem Rani were born. This fact is not disclosed in the suit for possession intentionally with ulterior motive. Lastly, it was asserted that here is no material available on record to prove that the Sushila was the legally wedded wife after the death of Bimla Rani (mother of Defendant no.1). 9. Per contra, learned counsel for the Respondents contends that it was upon Defendants to prove that the Plaintiffs have concealed material facts from the courts below, however, the issue with respect to concealment of facts was not pressed during the time of arguments before Trial Court thus the issue was decided in favour of Plaintiffs. Hence, in view of the issue having attained finality, the Appellants at this stage cannot allege that Petitioners approached the courts below with unclean hands. The Respondents also submitted that the three-Courts below recorded the finding of fact proving the Will executed by Krishna Kumar in favour of second wife Sushila Kumari. The Will dated 09.12.1975 executed by Late Lahori Ram in favour of Defendant no.1 has not been proved. In any case, Krishna Kumar being sole owner alienated his right to Sushila Kumari and no right vests to Defendant no.1 by virtue of the said Will. Therefore, Defendants no.2 & 3 cannot acquire any title from Defendant no.1. Thus, the finding as recorded by threeCourts are neither perverse nor illegal and do not warrant any interference in this appeal. 10. After having heard learned counsel appearing for the parties and on perusal of the record, it is apparent that the Defendants No.2 & 3 are claiming the right in the subject property being bonafide purchasers from Defendant No.1-Nand Kishore by virtue of registered sale deed dated 04.05.2006 after payment of the amount of consideration of Rs.3,40,000/-. Only right, title and interest, which is vested in Defendant No.1 can be transferred to Defendants No.2 & 3. It is not in dispute that Lt. Pt. Lahori Ram was the owner of the subject property who died on 21.10.1977. The Lt. Lahori Ram executed two Wills, first is on 15.11.1957 in favor of Krishna Kumar and another on 09.12.1975 in favor of Defendant No.1-Nand Kishore. As per the findings recorded by three courts below, both the Wills have not been proved, therefore, the right, title and interest vested in Lt. Lahori Ram has not been transferred by virtue of those Wills. In consequence, Krishna Kumar being sole legal heir acquired title in the property which was bequeathed by Will dated 20.10.1993 in favor of Sushila Kumari. The said Will is found proved by the two-Courts and those findings were upheld even by the High Court. The plea taken in appeal with respect to having two other legal heirs of Pt. Lahori Ram in addition to Krishna Kumar was not found merit by the Lower Appellate Court. We are of the view that if upon the subsequent knowledge Defendants discovered that Krishna Kumar was not sole legal heir of Lt. Pt. Lahori Ram, an amendment in the written statement should have been proposed by the Defendants joining other legal heirs of Lt. Pt. Lahori Ram as a party, but no such steps were taken by the Defendants. Thus, the Court found that Krishan Kumar being sole owner inherited subject property of Lt. Pt. Lahori Ram having right to execute Will in favor of Sushila Kumari who resided as a wife and from the said wedlock Plaintiffs were born. The Will executed in favor of Sushila Kumari was found proved. Thus, Sushila Kumari became sole owner on the basis of the proved Will dated 20.10.1993 and Plaintiffs received from her after death. In such circumstances, it is clear that the Defendant No.1 was not having any title and interest in the property, therefore, he cannot pass the title which he does not have. Thus, on the basis of the sale deed executed on 04.05.2006 by Defendant No.1 in favor of Defendants No.2 & 3 they cannot acquire better title than that of Defendant No.1. Further, the Plaintiffs have not per se challenged the Sale Deed dated 04.05.2006 except to contend before the Courts below to ignore the same. Simultaneously, the Defendants have taken the ground of not adjudicating the rights of innocent bonafide purchasers qua the subject property after payment of lawful consideration and carried out fresh construction without any hindrance by anyone. In view of the same, we are not commenting on the validity of Sale Deed and keeping it open for the Appellants to take recourse as permissible under the law. | 0[ds]10. After having heard learned counsel appearing for the parties and on perusal of the record, it is apparent that the Defendants No.2 & 3 are claiming the right in the subject property being bonafide purchasers from Defendant No.1-Nand Kishore by virtue of registered sale deed dated 04.05.2006 after payment of the amount of consideration of Rs.3,40,000/-. Only right, title and interest, which is vested in Defendant No.1 can be transferred to Defendants No.2 & 3. It is not in dispute that Lt. Pt. Lahori Ram was the owner of the subject property who died on 21.10.1977. The Lt. Lahori Ram executed two Wills, first is on 15.11.1957 in favor of Krishna Kumar and another on 09.12.1975 in favor of Defendant No.1-Nand Kishore. As per the findings recorded by three courts below, both the Wills have not been proved, therefore, the right, title and interest vested in Lt. Lahori Ram has not been transferred by virtue of those Wills. In consequence, Krishna Kumar being sole legal heir acquired title in the property which was bequeathed by Will dated 20.10.1993 in favor of Sushila Kumari. The said Will is found proved by the two-Courts and those findings were upheld even by the High Court. The plea taken in appeal with respect to having two other legal heirs of Pt. Lahori Ram in addition to Krishna Kumar was not found merit by the Lower Appellate Court. We are of the view that if upon the subsequent knowledge Defendants discovered that Krishna Kumar was not sole legal heir of Lt. Pt. Lahori Ram, an amendment in the written statement should have been proposed by the Defendants joining other legal heirs of Lt. Pt. Lahori Ram as a party, but no such steps were taken by the Defendants. Thus, the Court found that Krishan Kumar being sole owner inherited subject property of Lt. Pt. Lahori Ram having right to execute Will in favor of Sushila Kumari who resided as a wife and from the said wedlock Plaintiffs were born. The Will executed in favor of Sushila Kumari was found proved. Thus, Sushila Kumari became sole owner on the basis of the proved Will dated 20.10.1993 and Plaintiffs received from her after death. In such circumstances, it is clear that the Defendant No.1 was not having any title and interest in the property, therefore, he cannot pass the title which he does not have. Thus, on the basis of the sale deed executed on 04.05.2006 by Defendant No.1 in favor of Defendants No.2 & 3 they cannot acquire better title than that of Defendant No.1. Further, the Plaintiffs have not per se challenged the Sale Deed dated 04.05.2006 except to contend before the Courts below to ignore the same. Simultaneously, the Defendants have taken the ground of not adjudicating the rights of innocent bonafide purchasers qua the subject property after payment of lawful consideration and carried out fresh construction without any hindrance by anyone. In view of the same, we are not commenting on the validity of Sale Deed and keeping it open for the Appellants to take recourse as permissible under the law. | 0 | 2,535 | 568 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
was having one brother Kailash Nath and sister Prakash Lata. The Plaintiffs acquiesced the rights of Defendants No.2 & 3 by not filing suit for cancellation of sale deed after purchase of the subject property and during construction went on for a year. There cannot be any reasonable basis or to have any suspicion and doubt regarding the bonafide purchase of the subject property from the Defendant No.1. The said purchase was after due diligence and on verification of the house tax assessment record of the year 1992-93 as maintained by Municipal Committee, Firozepur City. Water bills and electric bills were all in the name of Defendant No.1. Thus, on the advice of the advocate and after taking loan from the bank, a non-encumbrance certificate was issued and a public notice was published by Defendant No.1-Nand Kishore in the newspaper Aaj Di Awaz, Jalandhar dated 11.01.2016 specifically referring the document of title i.e. Will dated 09.12.1975. The Appellants have also submitted that their rights as bona fide purchaser have been ignored by the Courts below so much so that the decree is silent as to the fate of consideration paid by them leading to unjust enrichment at the cost and peril. Learned counsel for the appellants further urged that Plaintiffs have approached the courts below with unclean hands as they concealed the material facts from the courts below that Krishna Kumar was earlier married to Bimla Rani and out of this wedlock Nand Kishore and Hem Rani were born. This fact is not disclosed in the suit for possession intentionally with ulterior motive. Lastly, it was asserted that here is no material available on record to prove that the Sushila was the legally wedded wife after the death of Bimla Rani (mother of Defendant no.1). 9. Per contra, learned counsel for the Respondents contends that it was upon Defendants to prove that the Plaintiffs have concealed material facts from the courts below, however, the issue with respect to concealment of facts was not pressed during the time of arguments before Trial Court thus the issue was decided in favour of Plaintiffs. Hence, in view of the issue having attained finality, the Appellants at this stage cannot allege that Petitioners approached the courts below with unclean hands. The Respondents also submitted that the three-Courts below recorded the finding of fact proving the Will executed by Krishna Kumar in favour of second wife Sushila Kumari. The Will dated 09.12.1975 executed by Late Lahori Ram in favour of Defendant no.1 has not been proved. In any case, Krishna Kumar being sole owner alienated his right to Sushila Kumari and no right vests to Defendant no.1 by virtue of the said Will. Therefore, Defendants no.2 & 3 cannot acquire any title from Defendant no.1. Thus, the finding as recorded by threeCourts are neither perverse nor illegal and do not warrant any interference in this appeal. 10. After having heard learned counsel appearing for the parties and on perusal of the record, it is apparent that the Defendants No.2 & 3 are claiming the right in the subject property being bonafide purchasers from Defendant No.1-Nand Kishore by virtue of registered sale deed dated 04.05.2006 after payment of the amount of consideration of Rs.3,40,000/-. Only right, title and interest, which is vested in Defendant No.1 can be transferred to Defendants No.2 & 3. It is not in dispute that Lt. Pt. Lahori Ram was the owner of the subject property who died on 21.10.1977. The Lt. Lahori Ram executed two Wills, first is on 15.11.1957 in favor of Krishna Kumar and another on 09.12.1975 in favor of Defendant No.1-Nand Kishore. As per the findings recorded by three courts below, both the Wills have not been proved, therefore, the right, title and interest vested in Lt. Lahori Ram has not been transferred by virtue of those Wills. In consequence, Krishna Kumar being sole legal heir acquired title in the property which was bequeathed by Will dated 20.10.1993 in favor of Sushila Kumari. The said Will is found proved by the two-Courts and those findings were upheld even by the High Court. The plea taken in appeal with respect to having two other legal heirs of Pt. Lahori Ram in addition to Krishna Kumar was not found merit by the Lower Appellate Court. We are of the view that if upon the subsequent knowledge Defendants discovered that Krishna Kumar was not sole legal heir of Lt. Pt. Lahori Ram, an amendment in the written statement should have been proposed by the Defendants joining other legal heirs of Lt. Pt. Lahori Ram as a party, but no such steps were taken by the Defendants. Thus, the Court found that Krishan Kumar being sole owner inherited subject property of Lt. Pt. Lahori Ram having right to execute Will in favor of Sushila Kumari who resided as a wife and from the said wedlock Plaintiffs were born. The Will executed in favor of Sushila Kumari was found proved. Thus, Sushila Kumari became sole owner on the basis of the proved Will dated 20.10.1993 and Plaintiffs received from her after death. In such circumstances, it is clear that the Defendant No.1 was not having any title and interest in the property, therefore, he cannot pass the title which he does not have. Thus, on the basis of the sale deed executed on 04.05.2006 by Defendant No.1 in favor of Defendants No.2 & 3 they cannot acquire better title than that of Defendant No.1. Further, the Plaintiffs have not per se challenged the Sale Deed dated 04.05.2006 except to contend before the Courts below to ignore the same. Simultaneously, the Defendants have taken the ground of not adjudicating the rights of innocent bonafide purchasers qua the subject property after payment of lawful consideration and carried out fresh construction without any hindrance by anyone. In view of the same, we are not commenting on the validity of Sale Deed and keeping it open for the Appellants to take recourse as permissible under the law.
### Response:
0
### Explanation:
10. After having heard learned counsel appearing for the parties and on perusal of the record, it is apparent that the Defendants No.2 & 3 are claiming the right in the subject property being bonafide purchasers from Defendant No.1-Nand Kishore by virtue of registered sale deed dated 04.05.2006 after payment of the amount of consideration of Rs.3,40,000/-. Only right, title and interest, which is vested in Defendant No.1 can be transferred to Defendants No.2 & 3. It is not in dispute that Lt. Pt. Lahori Ram was the owner of the subject property who died on 21.10.1977. The Lt. Lahori Ram executed two Wills, first is on 15.11.1957 in favor of Krishna Kumar and another on 09.12.1975 in favor of Defendant No.1-Nand Kishore. As per the findings recorded by three courts below, both the Wills have not been proved, therefore, the right, title and interest vested in Lt. Lahori Ram has not been transferred by virtue of those Wills. In consequence, Krishna Kumar being sole legal heir acquired title in the property which was bequeathed by Will dated 20.10.1993 in favor of Sushila Kumari. The said Will is found proved by the two-Courts and those findings were upheld even by the High Court. The plea taken in appeal with respect to having two other legal heirs of Pt. Lahori Ram in addition to Krishna Kumar was not found merit by the Lower Appellate Court. We are of the view that if upon the subsequent knowledge Defendants discovered that Krishna Kumar was not sole legal heir of Lt. Pt. Lahori Ram, an amendment in the written statement should have been proposed by the Defendants joining other legal heirs of Lt. Pt. Lahori Ram as a party, but no such steps were taken by the Defendants. Thus, the Court found that Krishan Kumar being sole owner inherited subject property of Lt. Pt. Lahori Ram having right to execute Will in favor of Sushila Kumari who resided as a wife and from the said wedlock Plaintiffs were born. The Will executed in favor of Sushila Kumari was found proved. Thus, Sushila Kumari became sole owner on the basis of the proved Will dated 20.10.1993 and Plaintiffs received from her after death. In such circumstances, it is clear that the Defendant No.1 was not having any title and interest in the property, therefore, he cannot pass the title which he does not have. Thus, on the basis of the sale deed executed on 04.05.2006 by Defendant No.1 in favor of Defendants No.2 & 3 they cannot acquire better title than that of Defendant No.1. Further, the Plaintiffs have not per se challenged the Sale Deed dated 04.05.2006 except to contend before the Courts below to ignore the same. Simultaneously, the Defendants have taken the ground of not adjudicating the rights of innocent bonafide purchasers qua the subject property after payment of lawful consideration and carried out fresh construction without any hindrance by anyone. In view of the same, we are not commenting on the validity of Sale Deed and keeping it open for the Appellants to take recourse as permissible under the law.
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M/s. George Oakes Private Limited & Others Vs. State of Madras | tax could be included in the total turnover, tax on the tax so included could be levied only at 3 pies for every rupee, but the additional tax at 6 pies for every rupee could not be levied. It is not necessary to refer to all the orders that were passed in the several cases, but the following extract from one of them may be read :- that when sales tax collected is included in the turnover, it will be proper to tax that amount only at the minimum rate of 3 pies in the rupee under S. 3(1) of the Act. 5. The State of Madras then filed in the High Court applications for revision under S. 12(B)(l) of the Madras General Sales tax Act, and the High Court held that the tax could be levied on the consolidated amount not only at 3 pies for every rupee of turnover but also at 6 pies in respect of the turnover relating to goods liable to the additional tax. In doing so, the High Court merely followed its earlier decision reported in State of Madras v. Bangalore Automobiles, 1956-7 STC 537 : (AIR 1957 Mad 682 ). The High Court, however, granted certificates of fitness, and these appeals have been filed. Earlier, the High Court had decided in Sundarajan and Co. Ltd. v. State of Madras, 1956-7 STC 105 : ((S) AIR 1956 Mad 298 ) that the Madras General Sales Tax (Definition of Turnover and validation of Assessments) Act, 1954 was validly enacted and was constitutional. The decision in 1956-7 STC 105 : (( S) AIR 1956 Mad 298 ), was approved by this Court recently in George Oakes (Private) Ltd. v. State of Madras, 1961-12 STC 476 :(AIR 1962 SC 1037 ) and though the point was raised in these appeals, it was not pressed at the hearing. 6. The question that is now raised and which alone survives, is whether the additional tax can be included in the, turnover relating to the special goods and the resultant sum taxed at 6 pies for every rupee. In the earlier appeals ending with the decision of this Court in Messrs. George Oakes case, 1961-12 STC 476 : (AIR 1962 SC 1037 ) above mentioned it was contended that the inclusion of the tax in the turnover would amount to the levy of a tax on tax, and that the power to levy the tax extended only to the levy of the tax on the price paid for the goods by the purchaser, which price did not include the tax paid separately. It was pointed out by this Court that the word price in so far as the purchaser is concerned, includes the tax also, and that in laws dealing with sales tax, turnover has, in England and America also, been held to include the tax. The reason for such inclusion is stated to be that the dealer who realises the tax does not hand it over forthwith to Government but keeps it with him, and turns it over in his business before he parts with it. Thus, the tax becomes, for the time being, a part of the circulating capital of the tradesman, and is turned over in his business. Again, it was said that the price paid by the purchaser was not so much money for the article plus tax but a composite sum. Therefore, in calculating the total turnover, there is nothing wrong in treating the tax as part of the turnover, because turnover means the amount of money which is turned over in the business. In the case in which we have referred, the Validating Act was declared valid and constitutional. In the present appeals, we are required to work out the result of the Validating Act in respect of the additional tax, because in so far as the collection of tax at 3 pies for every rupee of turnover is concerned, no difficulty presents itself. 7. The scheme of the Act shows that there is to be a tax of 3 pies on every rupee of turnover for all classes of goods except those which might be exempted. Then there is a further additional tax of 6 pies on every rupee of the turnover in respect of certain classes of goods. This additional tax is leviable not on the total turnover but on the turnover in each year relating to such goods. The words relating to such goods show that the turnover for purposes of the additional tax is the total of all sale prices including, of course, the tax at 3 pies relating to the special goods. The additional tax is then levied on that turnover. But then, in determining the taxable turnover in respect of the special goods, the tax chargeable at 6 pies for every rupee must be included. The necessary consequence is that for those goods which bear a tax of 3 pies on every rupee, the tax would be calculated on total amounts received by the tradesman including the tax at 8 pies for every rupee, and for those goods which bear the additional tax, the tax would be calculated on the total amount received by the tradesman including the tax at 9 pies per rupee. In this way, the tradesman pays tax at the rate of 3 pies for every rupee on all the goods and an additional tax of 6 pies on every rupee of the turnover relating to certain classes of goods. But, though he pays tax on the tax charged by him in the price, the tax at different rates goes into different turnovers, and there is no additional tax at 6 pies on those goods on which such tax is not imposed by the Act. 8. In our opinion, this is what the Deputy Commercial Tax Officer has ordered, and the High Court was right insetting aside the order of the Sales Tax Appellate Tribunal, and restoring the order of the Deputy Commercial Tax Officer. | 0[ds]In the earlier appeals ending with the decision of this Court in Messrs. George Oakes case, 1961-12 STC 476 : (AIR 1962 SC 1037 ) above mentioned it was contended that the inclusion of the tax in the turnover would amount to the levy of a tax on tax, and that the power to levy the tax extended only to the levy of the tax on the price paid for the goods by the purchaser, which price did not include the tax paid separately. It was pointed out by this Court that the word price in so far as the purchaser is concerned, includes the tax also, and that in laws dealing with sales tax, turnover has, in England and America also, been held to include the tax. The reason for such inclusion is stated to be that the dealer who realises the tax does not hand it over forthwith to Government but keeps it with him, and turns it over in his business before he parts with it. Thus, the tax becomes, for the time being, a part of the circulating capital of the tradesman, and is turned over in his business. Again, it was said that the price paid by the purchaser was not so much money for the article plus tax but a composite sum. Therefore, in calculating the total turnover, there is nothing wrong in treating the tax as part of the turnover, because turnover means the amount of money which is turned over in the business. In the case in which we have referred, the Validating Act was declared valid and constitutional. In the present appeals, we are required to work out the result of the Validating Act in respect of the additional tax, because in so far as the collection of tax at 3 pies for every rupee of turnover is concerned, no difficulty presents itself7. The scheme of the Act shows that there is to be a tax of 3 pies on every rupee of turnover for all classes of goods except those which might be exempted. Then there is a further additional tax of 6 pies on every rupee of the turnover in respect of certain classes of goods. This additional tax is leviable not on the total turnover but on the turnover in each year relating to such goods. The words relating to such goods show that the turnover for purposes of the additional tax is the total of all sale prices including, of course, the tax at 3 pies relating to the special goods. The additional tax is then levied on that turnover. But then, in determining the taxable turnover in respect of the special goods, the tax chargeable at 6 pies for every rupee must be included. The necessary consequence is that for those goods which bear a tax of 3 pies on every rupee, the tax would be calculated on total amounts received by the tradesman including the tax at 8 pies for every rupee, and for those goods which bear the additional tax, the tax would be calculated on the total amount received by the tradesman including the tax at 9 pies per rupee. In this way, the tradesman pays tax at the rate of 3 pies for every rupee on all the goods and an additional tax of 6 pies on every rupee of the turnover relating to certain classes of goods. But, though he pays tax on the tax charged by him in the price, the tax at different rates goes into different turnovers, and there is no additional tax at 6 pies on those goods on which such tax is not imposed by the Act8. In our opinion, this is what the Deputy Commercial Tax Officer has ordered, and the High Court was right insetting aside the order of the Sales Tax Appellate Tribunal, and restoring the order of the Deputy Commercial Tax Officer. | 0 | 1,930 | 708 | ### 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:
tax could be included in the total turnover, tax on the tax so included could be levied only at 3 pies for every rupee, but the additional tax at 6 pies for every rupee could not be levied. It is not necessary to refer to all the orders that were passed in the several cases, but the following extract from one of them may be read :- that when sales tax collected is included in the turnover, it will be proper to tax that amount only at the minimum rate of 3 pies in the rupee under S. 3(1) of the Act. 5. The State of Madras then filed in the High Court applications for revision under S. 12(B)(l) of the Madras General Sales tax Act, and the High Court held that the tax could be levied on the consolidated amount not only at 3 pies for every rupee of turnover but also at 6 pies in respect of the turnover relating to goods liable to the additional tax. In doing so, the High Court merely followed its earlier decision reported in State of Madras v. Bangalore Automobiles, 1956-7 STC 537 : (AIR 1957 Mad 682 ). The High Court, however, granted certificates of fitness, and these appeals have been filed. Earlier, the High Court had decided in Sundarajan and Co. Ltd. v. State of Madras, 1956-7 STC 105 : ((S) AIR 1956 Mad 298 ) that the Madras General Sales Tax (Definition of Turnover and validation of Assessments) Act, 1954 was validly enacted and was constitutional. The decision in 1956-7 STC 105 : (( S) AIR 1956 Mad 298 ), was approved by this Court recently in George Oakes (Private) Ltd. v. State of Madras, 1961-12 STC 476 :(AIR 1962 SC 1037 ) and though the point was raised in these appeals, it was not pressed at the hearing. 6. The question that is now raised and which alone survives, is whether the additional tax can be included in the, turnover relating to the special goods and the resultant sum taxed at 6 pies for every rupee. In the earlier appeals ending with the decision of this Court in Messrs. George Oakes case, 1961-12 STC 476 : (AIR 1962 SC 1037 ) above mentioned it was contended that the inclusion of the tax in the turnover would amount to the levy of a tax on tax, and that the power to levy the tax extended only to the levy of the tax on the price paid for the goods by the purchaser, which price did not include the tax paid separately. It was pointed out by this Court that the word price in so far as the purchaser is concerned, includes the tax also, and that in laws dealing with sales tax, turnover has, in England and America also, been held to include the tax. The reason for such inclusion is stated to be that the dealer who realises the tax does not hand it over forthwith to Government but keeps it with him, and turns it over in his business before he parts with it. Thus, the tax becomes, for the time being, a part of the circulating capital of the tradesman, and is turned over in his business. Again, it was said that the price paid by the purchaser was not so much money for the article plus tax but a composite sum. Therefore, in calculating the total turnover, there is nothing wrong in treating the tax as part of the turnover, because turnover means the amount of money which is turned over in the business. In the case in which we have referred, the Validating Act was declared valid and constitutional. In the present appeals, we are required to work out the result of the Validating Act in respect of the additional tax, because in so far as the collection of tax at 3 pies for every rupee of turnover is concerned, no difficulty presents itself. 7. The scheme of the Act shows that there is to be a tax of 3 pies on every rupee of turnover for all classes of goods except those which might be exempted. Then there is a further additional tax of 6 pies on every rupee of the turnover in respect of certain classes of goods. This additional tax is leviable not on the total turnover but on the turnover in each year relating to such goods. The words relating to such goods show that the turnover for purposes of the additional tax is the total of all sale prices including, of course, the tax at 3 pies relating to the special goods. The additional tax is then levied on that turnover. But then, in determining the taxable turnover in respect of the special goods, the tax chargeable at 6 pies for every rupee must be included. The necessary consequence is that for those goods which bear a tax of 3 pies on every rupee, the tax would be calculated on total amounts received by the tradesman including the tax at 8 pies for every rupee, and for those goods which bear the additional tax, the tax would be calculated on the total amount received by the tradesman including the tax at 9 pies per rupee. In this way, the tradesman pays tax at the rate of 3 pies for every rupee on all the goods and an additional tax of 6 pies on every rupee of the turnover relating to certain classes of goods. But, though he pays tax on the tax charged by him in the price, the tax at different rates goes into different turnovers, and there is no additional tax at 6 pies on those goods on which such tax is not imposed by the Act. 8. In our opinion, this is what the Deputy Commercial Tax Officer has ordered, and the High Court was right insetting aside the order of the Sales Tax Appellate Tribunal, and restoring the order of the Deputy Commercial Tax Officer.
### Response:
0
### Explanation:
In the earlier appeals ending with the decision of this Court in Messrs. George Oakes case, 1961-12 STC 476 : (AIR 1962 SC 1037 ) above mentioned it was contended that the inclusion of the tax in the turnover would amount to the levy of a tax on tax, and that the power to levy the tax extended only to the levy of the tax on the price paid for the goods by the purchaser, which price did not include the tax paid separately. It was pointed out by this Court that the word price in so far as the purchaser is concerned, includes the tax also, and that in laws dealing with sales tax, turnover has, in England and America also, been held to include the tax. The reason for such inclusion is stated to be that the dealer who realises the tax does not hand it over forthwith to Government but keeps it with him, and turns it over in his business before he parts with it. Thus, the tax becomes, for the time being, a part of the circulating capital of the tradesman, and is turned over in his business. Again, it was said that the price paid by the purchaser was not so much money for the article plus tax but a composite sum. Therefore, in calculating the total turnover, there is nothing wrong in treating the tax as part of the turnover, because turnover means the amount of money which is turned over in the business. In the case in which we have referred, the Validating Act was declared valid and constitutional. In the present appeals, we are required to work out the result of the Validating Act in respect of the additional tax, because in so far as the collection of tax at 3 pies for every rupee of turnover is concerned, no difficulty presents itself7. The scheme of the Act shows that there is to be a tax of 3 pies on every rupee of turnover for all classes of goods except those which might be exempted. Then there is a further additional tax of 6 pies on every rupee of the turnover in respect of certain classes of goods. This additional tax is leviable not on the total turnover but on the turnover in each year relating to such goods. The words relating to such goods show that the turnover for purposes of the additional tax is the total of all sale prices including, of course, the tax at 3 pies relating to the special goods. The additional tax is then levied on that turnover. But then, in determining the taxable turnover in respect of the special goods, the tax chargeable at 6 pies for every rupee must be included. The necessary consequence is that for those goods which bear a tax of 3 pies on every rupee, the tax would be calculated on total amounts received by the tradesman including the tax at 8 pies for every rupee, and for those goods which bear the additional tax, the tax would be calculated on the total amount received by the tradesman including the tax at 9 pies per rupee. In this way, the tradesman pays tax at the rate of 3 pies for every rupee on all the goods and an additional tax of 6 pies on every rupee of the turnover relating to certain classes of goods. But, though he pays tax on the tax charged by him in the price, the tax at different rates goes into different turnovers, and there is no additional tax at 6 pies on those goods on which such tax is not imposed by the Act8. In our opinion, this is what the Deputy Commercial Tax Officer has ordered, and the High Court was right insetting aside the order of the Sales Tax Appellate Tribunal, and restoring the order of the Deputy Commercial Tax Officer.
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Murlidhar Vs. State Of Rajasthan | in drawing the inference that the abductors had murdered the victim, Ramlal, after abduction. 25. The learned counsel for the appellants strenuously urged this last conclusion of the High Court was erroneous in law and that the appellants, even if liable to be convicted under Section 364 IPC, could not have been convicted under Section 302/34 IPC. 26. In Mir Mohammad Omar (supra) it was established that the accused had abducted the victim, who was later found murdered. The abductors had not given any explanation as to what happened to the victim after he was abducted by them. The Sessions Court held that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt as there was a missing link in the chain of events after the deceased was last seen together with the accused persons and the discovery of the dead body of the deceased at Islamia Hospital. Rejecting the said contention this Court observed (vide para 31): The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilized doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offences in serious offences would be the major beneficiaries and the society would be the casualty. 27. This Court further observed thus (vide para 33): Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. 28. The judgment of Vivian Bose, J in Shambu Nath Mehra vs. State of Ajmer 1956 SCR 199 lays down the legal principle underlying the shifting of burden of proof under Section 106 of the Evidence Act thus (vide para 38): This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are `especially within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word especially stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. 29. In our judgment, the High Court was not justified in relying on and applying the rule of burden of proof under Section 106 of the Evidence Act to the case. As pointed out in Mir. Mohammand Omar (supra) and Shambu Nath Mehra (supra), the rule in Section 106 of the Evidence Act would apply when the facts are especially within the knowledge of the accused and it would be impossible, or at any rate disproportionately difficult for the prosecution to establish such facts, especially within the knowledge of the accused. In the present case, the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused and, therefore, the principle in Section 106 could not apply. On the other hand, the prosecution on the footing that there were eye witnesses to the fact of murder. The prosecution took upon itself the burden of examining Babulal (PW 5) as eye witness. Testimony of Ram Ratan (PW 7) and Isro (PW 10) shows that their agricultural land was situated in a close distance from the house of Khema Ram. As rightly pointed out by the High Court, it is highly unlikely and improbable that their kith and kin Ramlal would have been given beating resulting in his death by the accused-appellants while keeping lights of their house on and door of the room opened. It is also unlikely that the accused-appellants would have taken the risk of dragging Ramlal to the house of Khema Ram, which was situated in the vicinity of agricultural land and well of Isro (PW 10), the father of Ramlal. The evidence of Govind (PW 13) also appears to be unnatural, as he had not disclosed the incident to anybody. The High Court has correctly analysed that all the witnesses, namely, Babulal (PW 5), Ram Ratan (PW 7), Isro (PW 10) and Govind (PW 13) are wholly unreliable as their evidence is repleated with contradiction and inherent improbabilities. 30. In the result, we are of the view that the prosecution having put forward a case that, what transpired after Ramlal was dragged away by the assailants was within the knowledge of witnesses, utterly failed in proving the said facts. Once this is established, it was not open for the High Court to have fallen back on the rule of burden of proof under Section 106 of the Evidence Act. In fact, as we notice, it was nowhere the case of the prosecution that Section 106 of the Evidence Act applied to the facts on record. The High Court seems to have brought it out on its own, but without any justification. We are, therefore, of the view that the | 1[ds]16. We are not satisfied that the evidence of Manaram (PW 2) and his son Sardar Mal (PW 4) can be discarded because of some minor inconsistencies and so called contradictions highlighted by the learned counsel. Nor we are prepared to discard the testimonies of these two eye witnesses merely because of their not immediately rushing to the Police Station, but proceeding to Nangal village and requesting the people to inform the police about the abduction of Ramlal20. The High Court has correctly analysed the evidence in this regard and came to the conclusion that the story given out by the witnesses is unbelievable. The witnesses on this part of the evidence are Mansingh (PW 6) and Surjaram (PW 9). These witnesses stated that on 2nd November, 1996 at about 8:30 p.m. when they were going back from Ringus to their village Bagdi Nagal, they saw a tractor trolley driven by Laxman. They named, Sheopal, Deepa, Bhagirath, Chhajuram, Murli, Sagar, Babulal son of Chhaju and Babulal son of Deepa were riding on the tractor. According to these witnesses, on an inquiry being made as to where they were going, Bhagirath and Chhaju informed them that Ballu Ram had become sick and they were taking him to Srimadhopur Hospital. PW 6 and PW 9 also claimed that they saw some body wrapped in a white gudri lying on the tractor. To say the least, the evidence appears to be wholly unnatural, as the High Court has pointed out that Man Singh (PW 6) is the motbir of most of the memos drawn by the Investigating Officer. Under the cross examination, he admitted that he had not informed the Police at the time of drawing the inquest report that he had seen the appellants carrying some body on the tractor trolley. While in his police statement (Ex. D-1) he named only six accused, but at the trial he gave 10-11 names. Surja Ram (PW 9) under his cross examination stated that, when he reached near the dead body of the deceased lying under the Ringus bridge, the police were already there, but at that time, he did not disclose the fact to the police that he had seen the appellants taking a body on the tractor trolley during the preceding night. We are satisfied that the analysis of the evidences by the High Court is perfectly justified, and we agree with the conclusion of the High Court that the testimony of these witnesses on this aspect of the matter did not inspire confidence29. In our judgment, the High Court was not justified in relying on and applying the rule of burden of proof under Section 106 of the Evidence Act to the case. As pointed out in Mir. Mohammand Omar (supra) and Shambu Nath Mehra (supra), the rule in Section 106 of the Evidence Act would apply when the facts are especially within the knowledge of the accused and it would be impossible, or at any rate disproportionately difficult for the prosecution to establish such facts, especially within the knowledge of the accused. In the present case, the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused and, therefore, the principle in Section 106 could not apply. On the other hand, the prosecution on the footing that there were eye witnesses to the fact of murder. The prosecution took upon itself the burden of examining Babulal (PW 5) as eye witness. Testimony of Ram Ratan (PW 7) and Isro (PW 10) shows that their agricultural land was situated in a close distance from the house of Khema Ram. As rightly pointed out by the High Court, it is highly unlikely and improbable that their kith and kin Ramlal would have been given beating resulting in his death by the accused-appellants while keeping lights of their house on and door of the room opened. It is also unlikely that the accused-appellants would have taken the risk of dragging Ramlal to the house of Khema Ram, which was situated in the vicinity of agricultural land and well of Isro (PW 10), the father of Ramlal. The evidence of Govind (PW 13) also appears to be unnatural, as he had not disclosed the incident to anybody. The High Court has correctly analysed that all the witnesses, namely, Babulal (PW 5), Ram Ratan (PW 7), Isro (PW 10) and Govind (PW 13) are wholly unreliable as their evidence is repleated with contradiction and inherent improbabilities17. Read as a whole, the testimonies of these two witnesses prove that, on the fateful day, while the camel cart driven by Manaram was passing by the farm of Khemaram, the accused suddenly appeared on the scene and pulled down Ramlal, belaboured him and dragged him away22. The evidence as to recoveries also appears doubtful. The recoveries consisted to lathis and HMT wrist watch from the accused Murlidhar. As to the evidence of lathis, the High Court has rightly refused to attach importance to the recoveries of the lathis as lathi is something to be found in every household in the concerned area23. As to the recovery of the HMT wrist watch, the evidence of Mahendra (PW 20), son of the deceased, is contradictory. While at one time he said that he identified the watch because it had a broken side pin, he changed his testimony later to say that he identified it because the strap was broken. No formal Test Identification Parade was arranged. It was also admitted by the witness that the model HMT-Kohinoor watch was a popular model and there must have been thousands of watches manufactured by the company. The special reason given by PW 20 for identifying the watch was that it had been presented by the in-laws of his younger brother at the time of betrothal ceremony. Neither the said brother of the deceased, who was actually the owner of the watch, nor the in-laws who had gifted the watch had examined to identify the watch. There was nothing special in the watch, which was, in any event broken, for accused Murlidhar to treasure it as a prized possession. There were no marks of blood or finger prints which could have connected the accused with the watch. Significantly, the charges under Sections 397 IPC for alleged robbery, or theft of the watch were failed and Murlidhar was acquired of the said charges. In these circumstances, the High Court was justified in rejecting the evidence of recoveries24. Finally, the High Court having accepted the evidence as to offence of abduction punishable under Section 364 IPC came to the conclusion that the prosecution evidence, when considered in the light of the proximity of time within which Ramlal sustained injuries and the proximity of the place within which the dead body was found, was enough to draw an inference that Ramlals death was caused by the accused. Relying on Section 106 of the Evidence Act, 1872 and the observations of this Court in State of W.B. vs. Mir Mohammad Omar and Ors. (2000) 8 SCC 382 , the High Court held that it was established that the appellants were the abductors of Ramlal, and since the facts were especially in the knowledge of the abductors, as the accused-abductors failed to offer any explanation as to what transpired after Ramlal had been abducted, the court would be justified in drawing the inference that the abductors had murdered the victim, Ramlal, after abduction13. Both, the Sessions Court and the High Court concurrently concluded that the evidence of Ajeet Singh (PW 3), Hari Ram (PW 15) and Kalu Ram (PW 31) could not be relied upon for insufficiency of their testimony to establish that there was a criminal conspiracy to abduct and murder. We are in agreement with the High Court on this issue. | 1 | 3,875 | 1,464 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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in drawing the inference that the abductors had murdered the victim, Ramlal, after abduction. 25. The learned counsel for the appellants strenuously urged this last conclusion of the High Court was erroneous in law and that the appellants, even if liable to be convicted under Section 364 IPC, could not have been convicted under Section 302/34 IPC. 26. In Mir Mohammad Omar (supra) it was established that the accused had abducted the victim, who was later found murdered. The abductors had not given any explanation as to what happened to the victim after he was abducted by them. The Sessions Court held that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt as there was a missing link in the chain of events after the deceased was last seen together with the accused persons and the discovery of the dead body of the deceased at Islamia Hospital. Rejecting the said contention this Court observed (vide para 31): The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilized doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offences in serious offences would be the major beneficiaries and the society would be the casualty. 27. This Court further observed thus (vide para 33): Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. 28. The judgment of Vivian Bose, J in Shambu Nath Mehra vs. State of Ajmer 1956 SCR 199 lays down the legal principle underlying the shifting of burden of proof under Section 106 of the Evidence Act thus (vide para 38): This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are `especially within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word especially stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. 29. In our judgment, the High Court was not justified in relying on and applying the rule of burden of proof under Section 106 of the Evidence Act to the case. As pointed out in Mir. Mohammand Omar (supra) and Shambu Nath Mehra (supra), the rule in Section 106 of the Evidence Act would apply when the facts are especially within the knowledge of the accused and it would be impossible, or at any rate disproportionately difficult for the prosecution to establish such facts, especially within the knowledge of the accused. In the present case, the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused and, therefore, the principle in Section 106 could not apply. On the other hand, the prosecution on the footing that there were eye witnesses to the fact of murder. The prosecution took upon itself the burden of examining Babulal (PW 5) as eye witness. Testimony of Ram Ratan (PW 7) and Isro (PW 10) shows that their agricultural land was situated in a close distance from the house of Khema Ram. As rightly pointed out by the High Court, it is highly unlikely and improbable that their kith and kin Ramlal would have been given beating resulting in his death by the accused-appellants while keeping lights of their house on and door of the room opened. It is also unlikely that the accused-appellants would have taken the risk of dragging Ramlal to the house of Khema Ram, which was situated in the vicinity of agricultural land and well of Isro (PW 10), the father of Ramlal. The evidence of Govind (PW 13) also appears to be unnatural, as he had not disclosed the incident to anybody. The High Court has correctly analysed that all the witnesses, namely, Babulal (PW 5), Ram Ratan (PW 7), Isro (PW 10) and Govind (PW 13) are wholly unreliable as their evidence is repleated with contradiction and inherent improbabilities. 30. In the result, we are of the view that the prosecution having put forward a case that, what transpired after Ramlal was dragged away by the assailants was within the knowledge of witnesses, utterly failed in proving the said facts. Once this is established, it was not open for the High Court to have fallen back on the rule of burden of proof under Section 106 of the Evidence Act. In fact, as we notice, it was nowhere the case of the prosecution that Section 106 of the Evidence Act applied to the facts on record. The High Court seems to have brought it out on its own, but without any justification. We are, therefore, of the view that the
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police statement (Ex. D-1) he named only six accused, but at the trial he gave 10-11 names. Surja Ram (PW 9) under his cross examination stated that, when he reached near the dead body of the deceased lying under the Ringus bridge, the police were already there, but at that time, he did not disclose the fact to the police that he had seen the appellants taking a body on the tractor trolley during the preceding night. We are satisfied that the analysis of the evidences by the High Court is perfectly justified, and we agree with the conclusion of the High Court that the testimony of these witnesses on this aspect of the matter did not inspire confidence29. In our judgment, the High Court was not justified in relying on and applying the rule of burden of proof under Section 106 of the Evidence Act to the case. As pointed out in Mir. Mohammand Omar (supra) and Shambu Nath Mehra (supra), the rule in Section 106 of the Evidence Act would apply when the facts are especially within the knowledge of the accused and it would be impossible, or at any rate disproportionately difficult for the prosecution to establish such facts, especially within the knowledge of the accused. In the present case, the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused and, therefore, the principle in Section 106 could not apply. On the other hand, the prosecution on the footing that there were eye witnesses to the fact of murder. The prosecution took upon itself the burden of examining Babulal (PW 5) as eye witness. Testimony of Ram Ratan (PW 7) and Isro (PW 10) shows that their agricultural land was situated in a close distance from the house of Khema Ram. As rightly pointed out by the High Court, it is highly unlikely and improbable that their kith and kin Ramlal would have been given beating resulting in his death by the accused-appellants while keeping lights of their house on and door of the room opened. It is also unlikely that the accused-appellants would have taken the risk of dragging Ramlal to the house of Khema Ram, which was situated in the vicinity of agricultural land and well of Isro (PW 10), the father of Ramlal. The evidence of Govind (PW 13) also appears to be unnatural, as he had not disclosed the incident to anybody. The High Court has correctly analysed that all the witnesses, namely, Babulal (PW 5), Ram Ratan (PW 7), Isro (PW 10) and Govind (PW 13) are wholly unreliable as their evidence is repleated with contradiction and inherent improbabilities17. Read as a whole, the testimonies of these two witnesses prove that, on the fateful day, while the camel cart driven by Manaram was passing by the farm of Khemaram, the accused suddenly appeared on the scene and pulled down Ramlal, belaboured him and dragged him away22. The evidence as to recoveries also appears doubtful. The recoveries consisted to lathis and HMT wrist watch from the accused Murlidhar. As to the evidence of lathis, the High Court has rightly refused to attach importance to the recoveries of the lathis as lathi is something to be found in every household in the concerned area23. As to the recovery of the HMT wrist watch, the evidence of Mahendra (PW 20), son of the deceased, is contradictory. While at one time he said that he identified the watch because it had a broken side pin, he changed his testimony later to say that he identified it because the strap was broken. No formal Test Identification Parade was arranged. It was also admitted by the witness that the model HMT-Kohinoor watch was a popular model and there must have been thousands of watches manufactured by the company. The special reason given by PW 20 for identifying the watch was that it had been presented by the in-laws of his younger brother at the time of betrothal ceremony. Neither the said brother of the deceased, who was actually the owner of the watch, nor the in-laws who had gifted the watch had examined to identify the watch. There was nothing special in the watch, which was, in any event broken, for accused Murlidhar to treasure it as a prized possession. There were no marks of blood or finger prints which could have connected the accused with the watch. Significantly, the charges under Sections 397 IPC for alleged robbery, or theft of the watch were failed and Murlidhar was acquired of the said charges. In these circumstances, the High Court was justified in rejecting the evidence of recoveries24. Finally, the High Court having accepted the evidence as to offence of abduction punishable under Section 364 IPC came to the conclusion that the prosecution evidence, when considered in the light of the proximity of time within which Ramlal sustained injuries and the proximity of the place within which the dead body was found, was enough to draw an inference that Ramlals death was caused by the accused. Relying on Section 106 of the Evidence Act, 1872 and the observations of this Court in State of W.B. vs. Mir Mohammad Omar and Ors. (2000) 8 SCC 382 , the High Court held that it was established that the appellants were the abductors of Ramlal, and since the facts were especially in the knowledge of the abductors, as the accused-abductors failed to offer any explanation as to what transpired after Ramlal had been abducted, the court would be justified in drawing the inference that the abductors had murdered the victim, Ramlal, after abduction13. Both, the Sessions Court and the High Court concurrently concluded that the evidence of Ajeet Singh (PW 3), Hari Ram (PW 15) and Kalu Ram (PW 31) could not be relied upon for insufficiency of their testimony to establish that there was a criminal conspiracy to abduct and murder. We are in agreement with the High Court on this issue.
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Oriental Insurance Co.Ltd Vs. Zaharulnisha | of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act.(iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish breach on the part of the owner of the vehicle; the burden of proof wherefor would be on them.(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act.(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.(viii) If a vehicle at the time of accident was driven by a person having a learners licence, the insurance companies would be liable to satisfy the decree.(ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and Se award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.(xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims. 18. In the light of the above-settled proposition of law, the appellant - insurance company cannot be held liable to pay the amount of compensation to the claimants for the cause of death of Shukurullah in road accident which had occurred due to rash and negligent driving of scooter by Ram Surat who admittedly had no valid and effective licence to drive the vehicle on the day of accident. The scooterist was possessing driving licence of driving HMV and he was driving totally different class of vehicle which act of his is in violation of Section 10(2) of the MV Act. | 1[ds]13. Driving licence has to be issued by the licencing authority on presentation of the application in Form IV as prescribed by Rule 14 of the Motor Vehicle Rules, 1989. The application form shall be accompanied by documents specified in the said Rule. The applicant has to apply for a licence in terms of Form IV enabling him to drive a particular vehicle of the description as specified in Section 10 of the MV Act, 1988. The licencing authority shall grant driving licence to the applicant in terms of Form VI and Rule 16(1) of the Central Motor Vehicle Rules, 1989.It is beyond any doubt or dispute that under Section 149 (1) of the MV Act, insurer, to whom notice of bringing of any proceeding for compensation has been given, can defend the action on any of the grounds mentioned therein.In the light of the above-settled proposition of law, the appellant - insurance company cannot be held liable to pay the amount of compensation to the claimants for the cause of death of Shukurullah in road accident which had occurred due to rash and negligent driving of scooter by Ram Surat who admittedly had no valid and effective licence to drive the vehicle on the day of accident. The scooterist was possessing driving licence of driving HMV and he was driving totally different class of vehicle which act of his is in violation of Section 10(2) of the MV Act. | 1 | 3,451 | 266 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act.(iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish breach on the part of the owner of the vehicle; the burden of proof wherefor would be on them.(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act.(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.(viii) If a vehicle at the time of accident was driven by a person having a learners licence, the insurance companies would be liable to satisfy the decree.(ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and Se award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.(xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims. 18. In the light of the above-settled proposition of law, the appellant - insurance company cannot be held liable to pay the amount of compensation to the claimants for the cause of death of Shukurullah in road accident which had occurred due to rash and negligent driving of scooter by Ram Surat who admittedly had no valid and effective licence to drive the vehicle on the day of accident. The scooterist was possessing driving licence of driving HMV and he was driving totally different class of vehicle which act of his is in violation of Section 10(2) of the MV Act.
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13. Driving licence has to be issued by the licencing authority on presentation of the application in Form IV as prescribed by Rule 14 of the Motor Vehicle Rules, 1989. The application form shall be accompanied by documents specified in the said Rule. The applicant has to apply for a licence in terms of Form IV enabling him to drive a particular vehicle of the description as specified in Section 10 of the MV Act, 1988. The licencing authority shall grant driving licence to the applicant in terms of Form VI and Rule 16(1) of the Central Motor Vehicle Rules, 1989.It is beyond any doubt or dispute that under Section 149 (1) of the MV Act, insurer, to whom notice of bringing of any proceeding for compensation has been given, can defend the action on any of the grounds mentioned therein.In the light of the above-settled proposition of law, the appellant - insurance company cannot be held liable to pay the amount of compensation to the claimants for the cause of death of Shukurullah in road accident which had occurred due to rash and negligent driving of scooter by Ram Surat who admittedly had no valid and effective licence to drive the vehicle on the day of accident. The scooterist was possessing driving licence of driving HMV and he was driving totally different class of vehicle which act of his is in violation of Section 10(2) of the MV Act.
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Secretary To Government Vs. M/S. Peekay Re-Rolling Mills (P) Ltd | generate their power requirements in excess of 2500 KVA of contract load by own captive power." (emphasis supplied) 12. As stated above, according to the appellants, the word and in the above quoted clause should be read as or whereas, according to the respondent, clause 7 defines power intensive units to mean units whose total power requirement exceeds 2500 KVA of contract load and where the cost of power is more than 25% of cost of production of the items manufactured by the units. As stated above, the learned Single Judge has accepted the contention advanced on behalf of the appellants herein. However, this is an important aspect. The said clause 7 refers to the Load Factor and to the cost of power as percentage of cost of production. According to the appellants, the Cost Factor has no nexus with the object sought to be achieved, namely, lowering of consumption. According to the appellants, under clause 7 both the cost and the load factors were required to be taken into account so that in cases where the limit of 2500 KVA is not exceeded, investment is not discouraged. According to the appellants, if both the conditions were to be satisfied for making a unit power intensive unit then, in the present case, the said G.O. dated 26/27.11.1993 would not apply since during the relevant period the respondents unit did not incur expenses on account of cost of power exceeding 25% of the total cost of production. In the present case, the Division Bench has failed to consider the following aspects in the matter of interpretation of clause 7 of the said G.O. dated 26/27.11.1993. The reason for issuance of the said G.O. was to curb excess electricity consumption and not to curb additional investments. The underlying reason for issuance of the said G.O. was to restrict power consumption and not to restrict expansion of units in terms of additional investments. This is the basic argument advanced on behalf of the respondent in support of their contention that the word and in clause 7 should be read conjunctively. On the other hand, it is argued on behalf of the appellants that the word and in the said clause should be read as or since the reason for issuance of the said G.O. was to curb excess electricity consumption either by way of exceeding the prescribed ceiling of 2500 KVA or by way of additional investments (capital expenditure for additional facility). These aspects have not been considered by the Division Bench though it had been considered in favour of the appellants by the learned Single Judge.13. For the above reasons, we hold that the State Government was entitled to issue comprehensive G.O. dated 26/27.11.1993 on account of acute power shortage in the State. We further hold that the comprehensive G.O. applies across the board to all units which became power intensive units. To that extent, we find merit in the civil appeals filed by the State. However, since the Division Bench of the High Court has not examined the points referred to above, to that extent alone, we remit the matter to the Division Bench for its consideration. Subject to above, the civil appeals filed by the State stand allowed. There is no order as to costs. Civil Appeal No. 8034/04 [Sales Tax Officer & Ors. v. Premium Ferro Alloys Ltd.] 14. Although, the dates of events are different, the matter is similar on the question of withdrawal of tax exemption to the case just decided vide Civil Appeal Nos. 8031/04 and 8032-8033/04 concerning Secretary to Government & Ors. v. M/s Peekay Re-rolling Mills (P) Ltd.15. One of the points which arises for determination in the present case is whether Premium Ferro Alloys Ltd. is entitled to claim tax exemption on additional investments made after 24.11.1998. It is urged on behalf of the said company (respondent herein) that G.O. No. 169/98/ID dated 24.11.1998 by which the State Government modified the negative list by including all types of steel re-rolling mills, units manufacturing iron ingots, operated prospectively. In this connection reliance was placed on clause 3 of the said G.O.16. We do not find any merit in the above contention. We quote hereinbelow clause 2 and clause 3 of the said G.O. dated 24.11.1998. "2 The Director of Industries & Commerce has in his letter read above proposed some modifications to the negative list. The Government have examined the proposal of the Director of Industries & Commerce and decided to amend the G.O. read above by including the following industries also in the negative list.1. Metal Crushers including Granite Manufacturing Units.2. All types of steel Re-Rolling Mills, Units Manufacturing iron ingots.3. Ferro Silicon4. Calcium Carbide5. Cement Manufacturing6. Potassium Chlorate3. This order will be effective from the date of order and will be applicable to all units taking provisional registration or IEM/SIA as the case may be from the date of this order. All the conditions stipulated in the G.O. read above and subsequent amendments/clarifications issued thereon will be applicable to this order also." 17. Reading the above two clauses, it is clear that the G.O. dated 26/27.11.1993 got modified by G.O. dated 24.11.1998. Therefore, if the said G.O. dated 26/27.11.1993 is found to be applicable then the G.O. dated 24.11.1998 which is modification of the earlier G.O. dated 26/27.11.1993 would apply as a clarificatory G.O.. We may reiterate that in our judgment in Civil Appeal Nos. 8031/04 and 8032-8033/04 the question of interpretation of clause 7 of G.O. dated 26/27.11.1993 has been remitted to the High Court. However, as far as retrospectivity of G.O. dated 24.11.1998 is concerned, we are of the view that the said G.O. is clarificatory. Therefore, there is no merit in the contention raised on behalf of Premium Ferro Alloys Ltd. that the said G.O. dated 24.11.1998 is prospective and not retrospective.18. However, the issues, which we have remitted to the Division Bench in the earlier matters (Civil Appeal Nos. 8031/04 and 8032-8033/04), also arise in the present case. | 1[ds]7. We are of the view that the State Government had the authority under Article 162 of the Constitution to issue G.O. dated 26/27.11.1993 withdrawing the tax exemption on account of acute power shortage in the State. However, for the reasons mentioned herein below, we are not examining the larger question of principle, namely, applicability of specific Notification under Section 10(1) of the 1963 Actcomprehensive Notification dated 26/27.11.1993 issued by the Ministry of Industries withdrawing all tax exemptions including those under Section 10(1) of the 1963 Act.8. We are proceeding on the basis that the comprehensive G.O. dated 26/27.11.1993 issued by the State Government on account of acute power shortage is applicable to the facts of the present case. It is undisputed that on 4.11.1993 the State Government had issued a statutory Notification under Section 10(1) inter alia granting exemption to medium scale units from payment of sales tax for seven years. Similarly, the State had given concessions under Electricity Act. It had promised subsidies. All these exemptions/concessions were withdrawn by G.O. dated 26/27.11.1993 by the Ministry of Industries on account of acute power shortage. We do not find any infirmity in the issuance of the said G.O. dated 26/27.11.1993.As stated above, according to the appellants, the word and in the above quoted clause should be read as or whereas, according to the respondent, clause 7 defines power intensive units to mean units whose total power requirement exceeds 2500 KVA of contract load and where the cost of power is more than 25% of cost of production of the items manufactured by the units. As stated above, the learned Single Judge has accepted the contention advanced on behalf of the appellants herein. However, this is an important aspect. The said clause 7 refers to the Load Factor and to the cost of power as percentage of cost of production. According to the appellants, the Cost Factor has no nexus with the object sought to be achieved, namely, lowering of consumption. According to the appellants, under clause 7 both the cost and the load factors were required to be taken into account so that in cases where the limit of 2500 KVA is not exceeded, investment is not discouraged. According to the appellants, if both the conditions were to be satisfied for making a unit power intensive unit then, in the present case, the said G.O. dated 26/27.11.1993 would not apply since during the relevant period the respondents unit did not incur expenses on account of cost of power exceeding 25% of the total cost of production. In the present case, the Division Bench has failed to consider the following aspects in the matter of interpretation of clause 7 of the said G.O. dated 26/27.11.1993. The reason for issuance of the said G.O. was to curb excess electricity consumption and not to curb additional investments. The underlying reason for issuance of the said G.O. was to restrict power consumption and not to restrict expansion of units in terms of additional investments. This is the basic argument advanced on behalf of the respondent in support of their contention that the word and in clause 7 should be read conjunctively. On the other hand, it is argued on behalf of the appellants that the word and in the said clause should be read as or since the reason for issuance of the said G.O. was to curb excess electricity consumption either by way of exceeding the prescribed ceiling of 2500 KVA or by way of additional investments (capital expenditure for additional facility). These aspects have not been considered by the Division Bench though it had been considered in favour of the appellants by the learned Single Judge.13. For the above reasons, we hold that the State Government was entitled to issue comprehensive G.O. dated 26/27.11.1993 on account of acute power shortage in the State. We further hold that the comprehensive G.O. applies across the board to all units which became power intensive units. To that extent, we find merit in the civil appeals filed by the State. However, since the Division Bench of the High Court has not examined the points referred to above, to that extent alone, we remit the matter to the Division Bench for its consideration. Subject to above, the civil appeals filed by the State stand allowed. There is no order as to costs.Although, the dates of events are different, the matter is similar on the question of withdrawal of tax exemption to the case just decided vide Civil Appeal Nos. 8031/04 andconcerning Secretary to Government & Ors. v. M/s PeekayMills (P) Ltd.15. One of the points which arises for determination in the present case is whether Premium Ferro Alloys Ltd. is entitled to claim tax exemption on additional investments made after 24.11.1998. It is urged on behalf of the said company (respondent herein) that G.O. No. 169/98/ID dated 24.11.1998 by which the State Government modified the negative list by including all types of steelmills, units manufacturing iron ingots, operated prospectively. In this connection reliance was placed on clause 3 of the said G.O.16. We do not find any merit in the above contention. We quote hereinbelow clause 2 and clause 3 of the said G.O. dated 24.11.1998.Reading the above two clauses, it is clear that the G.O. dated 26/27.11.1993 got modified by G.O. dated 24.11.1998. Therefore, if the said G.O. dated 26/27.11.1993 is found to be applicable then the G.O. dated 24.11.1998 which is modification of the earlier G.O. dated 26/27.11.1993 would apply as a clarificatory G.O.. We may reiterate that in our judgment in Civil Appeal Nos. 8031/04 andthe question of interpretation of clause 7 of G.O. dated 26/27.11.1993 has been remitted to the High Court. However, as far as retrospectivity of G.O. dated 24.11.1998 is concerned, we are of the view that the said G.O. is clarificatory. Therefore, there is no merit in the contention raised on behalf of Premium Ferro Alloys Ltd. that the said G.O. dated 24.11.1998 is prospective and not retrospective.18. However, the issues, which we have remitted to the Division Bench in the earlier matters (Civil Appeal Nos. 8031/04 andalso arise in the present case. | 1 | 3,341 | 1,147 | ### 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:
generate their power requirements in excess of 2500 KVA of contract load by own captive power." (emphasis supplied) 12. As stated above, according to the appellants, the word and in the above quoted clause should be read as or whereas, according to the respondent, clause 7 defines power intensive units to mean units whose total power requirement exceeds 2500 KVA of contract load and where the cost of power is more than 25% of cost of production of the items manufactured by the units. As stated above, the learned Single Judge has accepted the contention advanced on behalf of the appellants herein. However, this is an important aspect. The said clause 7 refers to the Load Factor and to the cost of power as percentage of cost of production. According to the appellants, the Cost Factor has no nexus with the object sought to be achieved, namely, lowering of consumption. According to the appellants, under clause 7 both the cost and the load factors were required to be taken into account so that in cases where the limit of 2500 KVA is not exceeded, investment is not discouraged. According to the appellants, if both the conditions were to be satisfied for making a unit power intensive unit then, in the present case, the said G.O. dated 26/27.11.1993 would not apply since during the relevant period the respondents unit did not incur expenses on account of cost of power exceeding 25% of the total cost of production. In the present case, the Division Bench has failed to consider the following aspects in the matter of interpretation of clause 7 of the said G.O. dated 26/27.11.1993. The reason for issuance of the said G.O. was to curb excess electricity consumption and not to curb additional investments. The underlying reason for issuance of the said G.O. was to restrict power consumption and not to restrict expansion of units in terms of additional investments. This is the basic argument advanced on behalf of the respondent in support of their contention that the word and in clause 7 should be read conjunctively. On the other hand, it is argued on behalf of the appellants that the word and in the said clause should be read as or since the reason for issuance of the said G.O. was to curb excess electricity consumption either by way of exceeding the prescribed ceiling of 2500 KVA or by way of additional investments (capital expenditure for additional facility). These aspects have not been considered by the Division Bench though it had been considered in favour of the appellants by the learned Single Judge.13. For the above reasons, we hold that the State Government was entitled to issue comprehensive G.O. dated 26/27.11.1993 on account of acute power shortage in the State. We further hold that the comprehensive G.O. applies across the board to all units which became power intensive units. To that extent, we find merit in the civil appeals filed by the State. However, since the Division Bench of the High Court has not examined the points referred to above, to that extent alone, we remit the matter to the Division Bench for its consideration. Subject to above, the civil appeals filed by the State stand allowed. There is no order as to costs. Civil Appeal No. 8034/04 [Sales Tax Officer & Ors. v. Premium Ferro Alloys Ltd.] 14. Although, the dates of events are different, the matter is similar on the question of withdrawal of tax exemption to the case just decided vide Civil Appeal Nos. 8031/04 and 8032-8033/04 concerning Secretary to Government & Ors. v. M/s Peekay Re-rolling Mills (P) Ltd.15. One of the points which arises for determination in the present case is whether Premium Ferro Alloys Ltd. is entitled to claim tax exemption on additional investments made after 24.11.1998. It is urged on behalf of the said company (respondent herein) that G.O. No. 169/98/ID dated 24.11.1998 by which the State Government modified the negative list by including all types of steel re-rolling mills, units manufacturing iron ingots, operated prospectively. In this connection reliance was placed on clause 3 of the said G.O.16. We do not find any merit in the above contention. We quote hereinbelow clause 2 and clause 3 of the said G.O. dated 24.11.1998. "2 The Director of Industries & Commerce has in his letter read above proposed some modifications to the negative list. The Government have examined the proposal of the Director of Industries & Commerce and decided to amend the G.O. read above by including the following industries also in the negative list.1. Metal Crushers including Granite Manufacturing Units.2. All types of steel Re-Rolling Mills, Units Manufacturing iron ingots.3. Ferro Silicon4. Calcium Carbide5. Cement Manufacturing6. Potassium Chlorate3. This order will be effective from the date of order and will be applicable to all units taking provisional registration or IEM/SIA as the case may be from the date of this order. All the conditions stipulated in the G.O. read above and subsequent amendments/clarifications issued thereon will be applicable to this order also." 17. Reading the above two clauses, it is clear that the G.O. dated 26/27.11.1993 got modified by G.O. dated 24.11.1998. Therefore, if the said G.O. dated 26/27.11.1993 is found to be applicable then the G.O. dated 24.11.1998 which is modification of the earlier G.O. dated 26/27.11.1993 would apply as a clarificatory G.O.. We may reiterate that in our judgment in Civil Appeal Nos. 8031/04 and 8032-8033/04 the question of interpretation of clause 7 of G.O. dated 26/27.11.1993 has been remitted to the High Court. However, as far as retrospectivity of G.O. dated 24.11.1998 is concerned, we are of the view that the said G.O. is clarificatory. Therefore, there is no merit in the contention raised on behalf of Premium Ferro Alloys Ltd. that the said G.O. dated 24.11.1998 is prospective and not retrospective.18. However, the issues, which we have remitted to the Division Bench in the earlier matters (Civil Appeal Nos. 8031/04 and 8032-8033/04), also arise in the present case.
### Response:
1
### Explanation:
26/27.11.1993 withdrawing the tax exemption on account of acute power shortage in the State. However, for the reasons mentioned herein below, we are not examining the larger question of principle, namely, applicability of specific Notification under Section 10(1) of the 1963 Actcomprehensive Notification dated 26/27.11.1993 issued by the Ministry of Industries withdrawing all tax exemptions including those under Section 10(1) of the 1963 Act.8. We are proceeding on the basis that the comprehensive G.O. dated 26/27.11.1993 issued by the State Government on account of acute power shortage is applicable to the facts of the present case. It is undisputed that on 4.11.1993 the State Government had issued a statutory Notification under Section 10(1) inter alia granting exemption to medium scale units from payment of sales tax for seven years. Similarly, the State had given concessions under Electricity Act. It had promised subsidies. All these exemptions/concessions were withdrawn by G.O. dated 26/27.11.1993 by the Ministry of Industries on account of acute power shortage. We do not find any infirmity in the issuance of the said G.O. dated 26/27.11.1993.As stated above, according to the appellants, the word and in the above quoted clause should be read as or whereas, according to the respondent, clause 7 defines power intensive units to mean units whose total power requirement exceeds 2500 KVA of contract load and where the cost of power is more than 25% of cost of production of the items manufactured by the units. As stated above, the learned Single Judge has accepted the contention advanced on behalf of the appellants herein. However, this is an important aspect. The said clause 7 refers to the Load Factor and to the cost of power as percentage of cost of production. According to the appellants, the Cost Factor has no nexus with the object sought to be achieved, namely, lowering of consumption. According to the appellants, under clause 7 both the cost and the load factors were required to be taken into account so that in cases where the limit of 2500 KVA is not exceeded, investment is not discouraged. According to the appellants, if both the conditions were to be satisfied for making a unit power intensive unit then, in the present case, the said G.O. dated 26/27.11.1993 would not apply since during the relevant period the respondents unit did not incur expenses on account of cost of power exceeding 25% of the total cost of production. In the present case, the Division Bench has failed to consider the following aspects in the matter of interpretation of clause 7 of the said G.O. dated 26/27.11.1993. The reason for issuance of the said G.O. was to curb excess electricity consumption and not to curb additional investments. The underlying reason for issuance of the said G.O. was to restrict power consumption and not to restrict expansion of units in terms of additional investments. This is the basic argument advanced on behalf of the respondent in support of their contention that the word and in clause 7 should be read conjunctively. On the other hand, it is argued on behalf of the appellants that the word and in the said clause should be read as or since the reason for issuance of the said G.O. was to curb excess electricity consumption either by way of exceeding the prescribed ceiling of 2500 KVA or by way of additional investments (capital expenditure for additional facility). These aspects have not been considered by the Division Bench though it had been considered in favour of the appellants by the learned Single Judge.13. For the above reasons, we hold that the State Government was entitled to issue comprehensive G.O. dated 26/27.11.1993 on account of acute power shortage in the State. We further hold that the comprehensive G.O. applies across the board to all units which became power intensive units. To that extent, we find merit in the civil appeals filed by the State. However, since the Division Bench of the High Court has not examined the points referred to above, to that extent alone, we remit the matter to the Division Bench for its consideration. Subject to above, the civil appeals filed by the State stand allowed. There is no order as to costs.Although, the dates of events are different, the matter is similar on the question of withdrawal of tax exemption to the case just decided vide Civil Appeal Nos. 8031/04 andconcerning Secretary to Government & Ors. v. M/s PeekayMills (P) Ltd.15. One of the points which arises for determination in the present case is whether Premium Ferro Alloys Ltd. is entitled to claim tax exemption on additional investments made after 24.11.1998. It is urged on behalf of the said company (respondent herein) that G.O. No. 169/98/ID dated 24.11.1998 by which the State Government modified the negative list by including all types of steelmills, units manufacturing iron ingots, operated prospectively. In this connection reliance was placed on clause 3 of the said G.O.16. We do not find any merit in the above contention. We quote hereinbelow clause 2 and clause 3 of the said G.O. dated 24.11.1998.Reading the above two clauses, it is clear that the G.O. dated 26/27.11.1993 got modified by G.O. dated 24.11.1998. Therefore, if the said G.O. dated 26/27.11.1993 is found to be applicable then the G.O. dated 24.11.1998 which is modification of the earlier G.O. dated 26/27.11.1993 would apply as a clarificatory G.O.. We may reiterate that in our judgment in Civil Appeal Nos. 8031/04 andthe question of interpretation of clause 7 of G.O. dated 26/27.11.1993 has been remitted to the High Court. However, as far as retrospectivity of G.O. dated 24.11.1998 is concerned, we are of the view that the said G.O. is clarificatory. Therefore, there is no merit in the contention raised on behalf of Premium Ferro Alloys Ltd. that the said G.O. dated 24.11.1998 is prospective and not retrospective.18. However, the issues, which we have remitted to the Division Bench in the earlier matters (Civil Appeal Nos. 8031/04 andalso arise in the present case.
|
State Of U.P Vs. Jai Prakash | Thereafter, only his dead body could be recovered from a well. Amina (PW-8) had also seen Nuruddin talking with the accused-respondent outside her house in the morning of the day of the incident. Allahdin (PW-2) had gone to Hathras to sell iron nails and had returned home at about 5 P.M. His wife Smt. Khatoon (PW-3) had then told him that Nuruddin had not been seen since morning and that the accused-respondent had taken him. He was also informed by Natthu Singh (PW-4) and others that they had seen the deceased going on a cycle with the accused-respondent. He had then lodged the report the same night at 9.10 P.M.The dead body of the deceased was recovered from the well of Raja Ram the same night at the instance of the accused-respondent who had allegedly been arrested by the SI Naresh Pal Yadav (PW-7) who had reached the village of the incident at about 10 P.M. Balbir (PW-6) was a witness of the recovery of the dead body of the deceased from the well at the instance of the accused and in consequence of the disclosure made by him under Section 27 of the Indian Evidence Act, 1872 (in short Evidence Act). The case was initially registered under Section 364 IPC but was subsequently converted additionally under Section 302 IPC and Section 201 IPC on the recovery of the dead body.The dead body was subjected to postmortem which was conducted on 22-2-1978 at 3 P.M. by Dr. S.K. Saxena (PW-1). The deceased was aged about 7 years and about 1= day had passed since he died. The following ante-mortem injuries were found on his person:1. Lacerated wound 1= " x 1" x bone deep on the scalp (L) side /2" outer to midline, 1=" above (L) eyebrow.2. Three abrasions in an area of 2" x 2" on the (L) temple region varying from <" x <" to = x 2/10". Skin of hands and feet was corrugated.Death had occurred due to coma and asphyxia owing to injury to brain and drowning. The investigation was undertaken and charge sheet was filed. As noted above, the Trial Court found the accused persons guilty. 3. In appeal, the appellant urged that the version of prosecution is clearly unbelievable. If the accused had the motive the scenario as described by the prosecution does not fit in. The High Court noted if the accused was harassing PW-3 and the deceased was asked to accompany her, it is highly improbable that mother of the deceased would like the deceased to go with the accused. So far as the evidence of PW-4 is concerned it was noted that he had not stated before the Investigating Officer that the deceased was being carried by the accused at bicycle. Accordingly the High Court directed acquittal. 4. In support of the appeal learned counsel for the appellant-State submitted that the motive was clearly established. The accused was having animosity towards the family of the deceased. Merely because PW-4 had not stated that during investigation the accused was carrying the deceased on a cycle, same cannot be a ground to discard the prosecution version. 5. None appeared for the respondent in spite of service of notice. 6. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh (2002 (2) Supreme 567)]. The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra (AIR 1973 SC 2622 ), Ramesh Babulal Doshi v. State of Gujarat (1996 (4) Supreme 167), Jaswant Singh v. State of Haryana (2000 (3) Supreme 320), Raj Kishore Jha v. State of Bihar and Ors. (2003 (7) Supreme 152), State of Punjab v. Karnail Singh (2003 (5) Supreme 508 and State of Punjab v. Pohla Singh and Anr. (2003 (7) Supreme 17).7. In the instant case the scenario presented by the prosecution does not appear to be natural. Prosecution case for establishing motive was that the accused was harassing PW-3 and had been rebuked for that. It was also stated that on several occasions accused wanted to sexually assault PW-8 and to ensure that she is not left alone, the deceased was asked to accompany her. In this background it is improbable and unnatural as rightly held by the High Court that PW-3 would permit deceased to go with the accused and would not take any precaution when she claimed to have seen the deceased in the company of the accused. Evidence of PW-4 is also not acceptable. His version in Court was that the accused was carrying the deceased on a bicycle. He did not say so during investigation. | 0[ds]6. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh (2002 (2) Supreme 567)]. The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra (AIR 1973 SC 2622 ), Ramesh Babulal Doshi v. State of Gujarat (1996 (4) Supreme 167), Jaswant Singh v. State of Haryana (2000 (3) Supreme 320), Raj Kishore Jha v. State of Bihar and Ors. (2003 (7) Supreme 152), State of Punjab v. Karnail Singh (2003 (5) Supreme 508 and State of Punjab v. Pohla Singh and Anr. (2003 (7) Supreme 17).7. In the instant case the scenario presented by the prosecution does not appear to be natural. Prosecution case for establishing motive was that the accused was harassing PW-3 and had been rebuked for that. It was also stated that on several occasions accused wanted to sexually assault PW-8 and to ensure that she is not left alone, the deceased was asked to accompany her. In this background it is improbable and unnatural as rightly held by the High Court that PW-3 would permit deceased to go with the accused and would not take any precaution when she claimed to have seen the deceased in the company of the accused. Evidence of PW-4 is also not acceptable. His version in Court was that the accused was carrying the deceased on a bicycle. He did not say so during investigation. | 0 | 1,369 | 529 | ### 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:
Thereafter, only his dead body could be recovered from a well. Amina (PW-8) had also seen Nuruddin talking with the accused-respondent outside her house in the morning of the day of the incident. Allahdin (PW-2) had gone to Hathras to sell iron nails and had returned home at about 5 P.M. His wife Smt. Khatoon (PW-3) had then told him that Nuruddin had not been seen since morning and that the accused-respondent had taken him. He was also informed by Natthu Singh (PW-4) and others that they had seen the deceased going on a cycle with the accused-respondent. He had then lodged the report the same night at 9.10 P.M.The dead body of the deceased was recovered from the well of Raja Ram the same night at the instance of the accused-respondent who had allegedly been arrested by the SI Naresh Pal Yadav (PW-7) who had reached the village of the incident at about 10 P.M. Balbir (PW-6) was a witness of the recovery of the dead body of the deceased from the well at the instance of the accused and in consequence of the disclosure made by him under Section 27 of the Indian Evidence Act, 1872 (in short Evidence Act). The case was initially registered under Section 364 IPC but was subsequently converted additionally under Section 302 IPC and Section 201 IPC on the recovery of the dead body.The dead body was subjected to postmortem which was conducted on 22-2-1978 at 3 P.M. by Dr. S.K. Saxena (PW-1). The deceased was aged about 7 years and about 1= day had passed since he died. The following ante-mortem injuries were found on his person:1. Lacerated wound 1= " x 1" x bone deep on the scalp (L) side /2" outer to midline, 1=" above (L) eyebrow.2. Three abrasions in an area of 2" x 2" on the (L) temple region varying from <" x <" to = x 2/10". Skin of hands and feet was corrugated.Death had occurred due to coma and asphyxia owing to injury to brain and drowning. The investigation was undertaken and charge sheet was filed. As noted above, the Trial Court found the accused persons guilty. 3. In appeal, the appellant urged that the version of prosecution is clearly unbelievable. If the accused had the motive the scenario as described by the prosecution does not fit in. The High Court noted if the accused was harassing PW-3 and the deceased was asked to accompany her, it is highly improbable that mother of the deceased would like the deceased to go with the accused. So far as the evidence of PW-4 is concerned it was noted that he had not stated before the Investigating Officer that the deceased was being carried by the accused at bicycle. Accordingly the High Court directed acquittal. 4. In support of the appeal learned counsel for the appellant-State submitted that the motive was clearly established. The accused was having animosity towards the family of the deceased. Merely because PW-4 had not stated that during investigation the accused was carrying the deceased on a cycle, same cannot be a ground to discard the prosecution version. 5. None appeared for the respondent in spite of service of notice. 6. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh (2002 (2) Supreme 567)]. The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra (AIR 1973 SC 2622 ), Ramesh Babulal Doshi v. State of Gujarat (1996 (4) Supreme 167), Jaswant Singh v. State of Haryana (2000 (3) Supreme 320), Raj Kishore Jha v. State of Bihar and Ors. (2003 (7) Supreme 152), State of Punjab v. Karnail Singh (2003 (5) Supreme 508 and State of Punjab v. Pohla Singh and Anr. (2003 (7) Supreme 17).7. In the instant case the scenario presented by the prosecution does not appear to be natural. Prosecution case for establishing motive was that the accused was harassing PW-3 and had been rebuked for that. It was also stated that on several occasions accused wanted to sexually assault PW-8 and to ensure that she is not left alone, the deceased was asked to accompany her. In this background it is improbable and unnatural as rightly held by the High Court that PW-3 would permit deceased to go with the accused and would not take any precaution when she claimed to have seen the deceased in the company of the accused. Evidence of PW-4 is also not acceptable. His version in Court was that the accused was carrying the deceased on a bicycle. He did not say so during investigation.
### Response:
0
### Explanation:
6. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh (2002 (2) Supreme 567)]. The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra (AIR 1973 SC 2622 ), Ramesh Babulal Doshi v. State of Gujarat (1996 (4) Supreme 167), Jaswant Singh v. State of Haryana (2000 (3) Supreme 320), Raj Kishore Jha v. State of Bihar and Ors. (2003 (7) Supreme 152), State of Punjab v. Karnail Singh (2003 (5) Supreme 508 and State of Punjab v. Pohla Singh and Anr. (2003 (7) Supreme 17).7. In the instant case the scenario presented by the prosecution does not appear to be natural. Prosecution case for establishing motive was that the accused was harassing PW-3 and had been rebuked for that. It was also stated that on several occasions accused wanted to sexually assault PW-8 and to ensure that she is not left alone, the deceased was asked to accompany her. In this background it is improbable and unnatural as rightly held by the High Court that PW-3 would permit deceased to go with the accused and would not take any precaution when she claimed to have seen the deceased in the company of the accused. Evidence of PW-4 is also not acceptable. His version in Court was that the accused was carrying the deceased on a bicycle. He did not say so during investigation.
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Smt. Anand Kaur Vs. Pritam Lal | 1. The short point arising for determination in this appeal concerns the validity of a notice served by the landlady-appellant on the tenant-respondent and purporting to be one issued in accordance with the provisions contained in Clause (a) or Sub-section (1) of Section 14 of the Delhi Rent Control Act (hereinafter called the Act), and we may at the very outset reproduce the relevant provisions of that section :“14 (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant:Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:-(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882;........................14 (2) No order for the recovery of possession of any premises shall be made on the ground specified in Clause (a) of the proviso to Sub-section (1), if the tenant makes payment or deposit as required by Section 15:Provided that no tenant shall be entitled to the benefit under this sub-section, if having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months.”2. The tenant-respondent has remained absent and unrepresented at the hearing and we have had the advantage of being addressed by Mr. Vinoo Bhagat, Learned counsel for the appellant only.3. It was not disputed before the High Court that in an earlier proceeding the tenant had taken advantage of the provisions contained in Subsection (2) of Section 14 of the Act, that he committed another default in the payment of rent which covered the period from 1-6-1973 to 30.11.1973 and that it was then that a notice dated 14.12.1973 was served on him. The notice stated:“Your contractual tenancy in respect of House No. A-54 (double-storey) Kalkaji, New Delhi-19 had already been terminated whereafter you are a statutory tenant liable to pay damages for use and occupation at the rate of Rs. 15/ (Rupees fifteen per month) to me. That you have not paid the said damages after May 1973. In case you do not clear the arrears upto date within two months from the date of this notice, I shall be compelled to issue instructions to my legal adviser to file an application for your eviction......................”No attempt to pay the rent was made in spite of the notice till the end of February 1974. Although thereafter rent was remitted to the landlady through money orders but she refused to accept the same and made an application to the Controller for eviction of the tenant on the sole ground of a second default in the payment of rent. Both the Controller and the Tribunal in the appeal held that the notice was a valid one and that the expression “damages for use and occupation” contained therein meant nothing more or less than rent. In a second appeal, a learned Single Judge differed from the Courts below and was of the opinion that the word ‘rent’ and the said expression could not be taken to be synonymous and that there was no demand of rent in the notice in question which did not, therefore, satisfy the, requirements of the provisions contained in Clause (a) above extracted. It is the judgment of the learned Single Judge which is assailed in the present appeal.4. After hearing Mr. Vinoo Bhagat, learned counsel for the appellant we are of the opinion that the learned Single Judge has taken an unnecessarily hypertechnical view of the contents of the notice. It is significant that the notice specifically stated that on account of the termination of the tenancy by an earlier notice the tenant had become what is popularly known as a statutory tenant and it was in this context that a claim was made for damages for use and occupation at a rate equivalent to the agreed rent. We are of the opinion that in the circumstances of the case the demand so made could not be construed as anything but a demand for rent. Consequently the notice must be held to satisfy the requirements of Clause (a) of Sub-section 14 of the Act. | 1[ds]4. After hearing Mr. Vinoo Bhagat, learned counsel for the appellant we are of the opinion that the learned Single Judge has taken an unnecessarily hypertechnical view of the contents of the notice. It is significant that the notice specifically stated that on account of the termination of the tenancy by an earlier notice the tenant had become what is popularly known as a statutory tenant and it was in this context that a claim was made for damagesfor use andoccupation at a rate equivalent to the agreed rent. We are of the opinion that in the circumstances of the case the demand so made could not be construed as anything but a demand for rent. Consequently the notice must be held to satisfy the requirements of Clause (a) of Sub-section 14 of the Act. | 1 | 863 | 147 | ### 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. The short point arising for determination in this appeal concerns the validity of a notice served by the landlady-appellant on the tenant-respondent and purporting to be one issued in accordance with the provisions contained in Clause (a) or Sub-section (1) of Section 14 of the Delhi Rent Control Act (hereinafter called the Act), and we may at the very outset reproduce the relevant provisions of that section :“14 (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant:Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:-(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882;........................14 (2) No order for the recovery of possession of any premises shall be made on the ground specified in Clause (a) of the proviso to Sub-section (1), if the tenant makes payment or deposit as required by Section 15:Provided that no tenant shall be entitled to the benefit under this sub-section, if having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months.”2. The tenant-respondent has remained absent and unrepresented at the hearing and we have had the advantage of being addressed by Mr. Vinoo Bhagat, Learned counsel for the appellant only.3. It was not disputed before the High Court that in an earlier proceeding the tenant had taken advantage of the provisions contained in Subsection (2) of Section 14 of the Act, that he committed another default in the payment of rent which covered the period from 1-6-1973 to 30.11.1973 and that it was then that a notice dated 14.12.1973 was served on him. The notice stated:“Your contractual tenancy in respect of House No. A-54 (double-storey) Kalkaji, New Delhi-19 had already been terminated whereafter you are a statutory tenant liable to pay damages for use and occupation at the rate of Rs. 15/ (Rupees fifteen per month) to me. That you have not paid the said damages after May 1973. In case you do not clear the arrears upto date within two months from the date of this notice, I shall be compelled to issue instructions to my legal adviser to file an application for your eviction......................”No attempt to pay the rent was made in spite of the notice till the end of February 1974. Although thereafter rent was remitted to the landlady through money orders but she refused to accept the same and made an application to the Controller for eviction of the tenant on the sole ground of a second default in the payment of rent. Both the Controller and the Tribunal in the appeal held that the notice was a valid one and that the expression “damages for use and occupation” contained therein meant nothing more or less than rent. In a second appeal, a learned Single Judge differed from the Courts below and was of the opinion that the word ‘rent’ and the said expression could not be taken to be synonymous and that there was no demand of rent in the notice in question which did not, therefore, satisfy the, requirements of the provisions contained in Clause (a) above extracted. It is the judgment of the learned Single Judge which is assailed in the present appeal.4. After hearing Mr. Vinoo Bhagat, learned counsel for the appellant we are of the opinion that the learned Single Judge has taken an unnecessarily hypertechnical view of the contents of the notice. It is significant that the notice specifically stated that on account of the termination of the tenancy by an earlier notice the tenant had become what is popularly known as a statutory tenant and it was in this context that a claim was made for damages for use and occupation at a rate equivalent to the agreed rent. We are of the opinion that in the circumstances of the case the demand so made could not be construed as anything but a demand for rent. Consequently the notice must be held to satisfy the requirements of Clause (a) of Sub-section 14 of the Act.
### Response:
1
### Explanation:
4. After hearing Mr. Vinoo Bhagat, learned counsel for the appellant we are of the opinion that the learned Single Judge has taken an unnecessarily hypertechnical view of the contents of the notice. It is significant that the notice specifically stated that on account of the termination of the tenancy by an earlier notice the tenant had become what is popularly known as a statutory tenant and it was in this context that a claim was made for damagesfor use andoccupation at a rate equivalent to the agreed rent. We are of the opinion that in the circumstances of the case the demand so made could not be construed as anything but a demand for rent. Consequently the notice must be held to satisfy the requirements of Clause (a) of Sub-section 14 of the Act.
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Laliteshwar Prasad Sahi Vs. Bateshwar Prasad And Others | in S. 7(d) and we would be substituting the word "agreement" for it. The Legislature has not chosen to use the word "agreement" but has used the word "contract" Therefore, a mere agreement entered into in contravention of Art. 299 and in fact not ratified cannot be called a "contract" within S. 7 (d) of the Representation of the People Act.11. The question then arises whether the Government did or did not ratify the oral contract entered into between the Executive Engineer and the Patna Flooring Company. In this connection, Mr. Sarjoo Prasad, relies on a number of documents. The first document he refers to is Ex. A-2, dated July 12, 1955, The Sub-Divisional Officer wrote to the Patna Flooring Company as follows:"It is disappointing to note that in spite of my repeated askings you have not submitted your final bill for the mosaic work uptill now. I have been personally explaining to you the whole position and you promised to submit final correct bill on Friday the 8th July, 1955, so that I may ask the contractor Shri G. P. Saxena to pay you off finally and settle your accounts immediately."It appears that something happened between May 25, 1955 and July 12, 1955. According to the respondent, what happened was that Saxena approached the Superintending Engineer and the Superintending Engineer ordered that Saxena would continue to be the contractor as before and no contract would be given to any firm. The respondent stated this in his evidence as R. W. 32. It is objected that this is hearsay and this part of the statement is not admissible. There is some force in this contention and we omit this part of the statement from consideration. But apart from this oral evidence it is quite clear from this letter that something happened, otherwise it was not necessary to use the words "personally explaining to you the whole position" in this letter, and it is not understandable why the Patna Flooring Company was being asked to submit the bill to Saxena. This inference is strengthened by subsequent correspondence. By letter. Dated July 13, 1955. Ex A-3, the S. D. O. acknowledged the receipt of the bill and said that he had sent it to Saxena for making settlement. Exhibit A-17, dated July 20, 1955, is significant. The Sub-Divisional Officer requested Saxena to issue orders to his contractors"to mend and rectify all the cuttings and damages properly and nicely so that the building is in a fit condition of handing over on 1st August, 1955."On July 23, 1955, Saxena endorsed it to the Patna Flooring Company for information and necessary action and with the request to rectify the defects pointed out to the Patna Flooring Company and complete the remaining portions of works and give final polishes thereto by the schedule date. It is not understandable why Saxena was endorsing this for action to Patna Flooring Company unless the Government had chosen not to ratify the contract with the Patna Flooring Company and was still treating him as a contractor. It is also significant that it has not been alleged or proved that any similar letter was written to Patna Flooring Company direct by the S. D. O. On July 21, 1955, a"statement showing upto 21st day of July, 1955, correct amount for the mosaic work done by M/s. Patna Flooring Co. in the Rajendra Surgical Block, Patna Medical College and Hospital Patna - Transactions between Shri G. P. Saxena, Prop. M/s. G. P. Saxena and Co. and M/s. Patna Flooring Co."was made out and this statement of account shows"Bill No. BP / 1833 /45/55, dated 13th July, 1955, through the S. D. O. No. III, Subdivision, Construction Division, Patna - bill for Rs. 14,000-9-0"and Saxena agreed to settle this bill, and a copy of that statement was forwarded to the Executive Engineer for record with reference to the discussion which was held between Saxena and Prasad in his presence and the presence of the S. D. O.This statement shows that the Government Officer was acknowledging that the liability for work done by the Patna Flooring Company would be that of Saxena. If a direct contract between the Patna Flooring Company and the Government still subsisted, all this arrangement seems to be uncalled for.12. Mr. Sarjoo Prasad further points out an important fact that when Saxena submitted the bill to the Government, he not only charged for the work done by the Patna Flooring Company but he charged it at the rates contained in his own contract and not in the quotations, dated April 14, 1955, given by the Patna Flooring company. We agree with him that this is a very significant fact and shows that as far as the Government was concerned, the original contract stood and the Government had not chosen to treat Patna Flooring Company as a contractor, but only as a sub-contractor working under Saxena.13. Mr. Purshottam laid a great deal of stress on the pleadings in the money suit No. 53 of 1959. There is not doubt that the plaint in the money suit filed by the Patna Flooring Company shows that Bateshwar Prasad, plaintiff, was trying to make out that there was a direct contract entered into between the P. W. D. and plaintiff, but even so, the plaint does not make them solely responsible. We have also come to a finding that there was admittedly a contract in the beginning. The fact that the plaint does not allege any subsequent non-acceptance or refusal to ratify by the Government would not estop the respondent from proving in this case that on the material on record it is clear that the Government had not ratified the contract with the respondent, but confirmed the original contract with Saxena. The written statement filed by the Government in the money suit cannot be used to destroy the inference which clearly arises from the documents referred to above. It is doubtful whether the written statement can be taken into consideration at all. | 0[ds]In our opinion, the Legislature has made no change in this respect for under the old provision it was also necessary for a contract to have subsisted at the relevant time. This Court had in Chatturbhujs case, 1954 SCR 817 : (AIR 1954 SC 236 ), included both executed and executory contracts within the provision of S. 7 (d) and had refused to follow the English rulings to the contrary. We cannot go into the question whether this was rightly done or not for we are bound by that decision Accordingly, following Chatturbhujs case. 1954 SCR 817 : (AIR 1954 SC 236 ), we hold that a contract for the supply of goods or for the execution of any works or the performance of any services undertaken does not cease to subsist only because the goods had been supplied or work had been executed or services performed. It continues to subsist till payment is made and the contract is fully discharged by performance on bothare inclined to agree with Mr. Purshottam that the correspondence in this group clearly discloses an agreement for the execution of work between the Executive Engineer and the Patna Flooring Company, and the Election Tribunal was quite right in coming to this conclusion. But we may say that the Election Tribunal was not right in holding that Cl. 3 (c) got rid of Art. 299 of the Constitution. Any work which is given in exercise of the powers under Cl. 3 (c) has also to comply with the provisions of Art. 299 of the Constitution.It seems to us that the decision in. Chatturbhujs case, 1954 SCR 817 : (AIR 1954 SC 236 ), cannot be extended to cover a case where the Government has in fact not ratified the contract. If we were to hold that this type of transaction is covered then we would be giving no effect to the word "contract" in S. 7(d) and we would be substituting the word "agreement" for it. The Legislature has not chosen to use the word "agreement" but has used the word "contract" Therefore, a mere agreement entered into in contravention of Art. 299 and in fact not ratified cannot be called a "contract" within S. 7 (d) of the Representation of the Peopleis not doubt that the plaint in the money suit filed by the Patna Flooring Company shows that Bateshwar Prasad, plaintiff, was trying to make out that there was a direct contract entered into between the P. W. D. and plaintiff, but even so, the plaint does not make them solely responsible. We have also come to a finding that there was admittedly a contract in the beginning. The fact that the plaint does not allege any subsequent non-acceptance or refusal to ratify by the Government would not estop the respondent from proving in this case that on the material on record it is clear that the Government had not ratified the contract with the respondent, but confirmed the original contract with Saxena. The written statement filed by the Government in the money suit cannot be used to destroy the inference which clearly arises from the documents referred to above. It is doubtful whether the written statement can be taken into consideration at all. | 0 | 4,704 | 605 | ### 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:
in S. 7(d) and we would be substituting the word "agreement" for it. The Legislature has not chosen to use the word "agreement" but has used the word "contract" Therefore, a mere agreement entered into in contravention of Art. 299 and in fact not ratified cannot be called a "contract" within S. 7 (d) of the Representation of the People Act.11. The question then arises whether the Government did or did not ratify the oral contract entered into between the Executive Engineer and the Patna Flooring Company. In this connection, Mr. Sarjoo Prasad, relies on a number of documents. The first document he refers to is Ex. A-2, dated July 12, 1955, The Sub-Divisional Officer wrote to the Patna Flooring Company as follows:"It is disappointing to note that in spite of my repeated askings you have not submitted your final bill for the mosaic work uptill now. I have been personally explaining to you the whole position and you promised to submit final correct bill on Friday the 8th July, 1955, so that I may ask the contractor Shri G. P. Saxena to pay you off finally and settle your accounts immediately."It appears that something happened between May 25, 1955 and July 12, 1955. According to the respondent, what happened was that Saxena approached the Superintending Engineer and the Superintending Engineer ordered that Saxena would continue to be the contractor as before and no contract would be given to any firm. The respondent stated this in his evidence as R. W. 32. It is objected that this is hearsay and this part of the statement is not admissible. There is some force in this contention and we omit this part of the statement from consideration. But apart from this oral evidence it is quite clear from this letter that something happened, otherwise it was not necessary to use the words "personally explaining to you the whole position" in this letter, and it is not understandable why the Patna Flooring Company was being asked to submit the bill to Saxena. This inference is strengthened by subsequent correspondence. By letter. Dated July 13, 1955. Ex A-3, the S. D. O. acknowledged the receipt of the bill and said that he had sent it to Saxena for making settlement. Exhibit A-17, dated July 20, 1955, is significant. The Sub-Divisional Officer requested Saxena to issue orders to his contractors"to mend and rectify all the cuttings and damages properly and nicely so that the building is in a fit condition of handing over on 1st August, 1955."On July 23, 1955, Saxena endorsed it to the Patna Flooring Company for information and necessary action and with the request to rectify the defects pointed out to the Patna Flooring Company and complete the remaining portions of works and give final polishes thereto by the schedule date. It is not understandable why Saxena was endorsing this for action to Patna Flooring Company unless the Government had chosen not to ratify the contract with the Patna Flooring Company and was still treating him as a contractor. It is also significant that it has not been alleged or proved that any similar letter was written to Patna Flooring Company direct by the S. D. O. On July 21, 1955, a"statement showing upto 21st day of July, 1955, correct amount for the mosaic work done by M/s. Patna Flooring Co. in the Rajendra Surgical Block, Patna Medical College and Hospital Patna - Transactions between Shri G. P. Saxena, Prop. M/s. G. P. Saxena and Co. and M/s. Patna Flooring Co."was made out and this statement of account shows"Bill No. BP / 1833 /45/55, dated 13th July, 1955, through the S. D. O. No. III, Subdivision, Construction Division, Patna - bill for Rs. 14,000-9-0"and Saxena agreed to settle this bill, and a copy of that statement was forwarded to the Executive Engineer for record with reference to the discussion which was held between Saxena and Prasad in his presence and the presence of the S. D. O.This statement shows that the Government Officer was acknowledging that the liability for work done by the Patna Flooring Company would be that of Saxena. If a direct contract between the Patna Flooring Company and the Government still subsisted, all this arrangement seems to be uncalled for.12. Mr. Sarjoo Prasad further points out an important fact that when Saxena submitted the bill to the Government, he not only charged for the work done by the Patna Flooring Company but he charged it at the rates contained in his own contract and not in the quotations, dated April 14, 1955, given by the Patna Flooring company. We agree with him that this is a very significant fact and shows that as far as the Government was concerned, the original contract stood and the Government had not chosen to treat Patna Flooring Company as a contractor, but only as a sub-contractor working under Saxena.13. Mr. Purshottam laid a great deal of stress on the pleadings in the money suit No. 53 of 1959. There is not doubt that the plaint in the money suit filed by the Patna Flooring Company shows that Bateshwar Prasad, plaintiff, was trying to make out that there was a direct contract entered into between the P. W. D. and plaintiff, but even so, the plaint does not make them solely responsible. We have also come to a finding that there was admittedly a contract in the beginning. The fact that the plaint does not allege any subsequent non-acceptance or refusal to ratify by the Government would not estop the respondent from proving in this case that on the material on record it is clear that the Government had not ratified the contract with the respondent, but confirmed the original contract with Saxena. The written statement filed by the Government in the money suit cannot be used to destroy the inference which clearly arises from the documents referred to above. It is doubtful whether the written statement can be taken into consideration at all.
### Response:
0
### Explanation:
In our opinion, the Legislature has made no change in this respect for under the old provision it was also necessary for a contract to have subsisted at the relevant time. This Court had in Chatturbhujs case, 1954 SCR 817 : (AIR 1954 SC 236 ), included both executed and executory contracts within the provision of S. 7 (d) and had refused to follow the English rulings to the contrary. We cannot go into the question whether this was rightly done or not for we are bound by that decision Accordingly, following Chatturbhujs case. 1954 SCR 817 : (AIR 1954 SC 236 ), we hold that a contract for the supply of goods or for the execution of any works or the performance of any services undertaken does not cease to subsist only because the goods had been supplied or work had been executed or services performed. It continues to subsist till payment is made and the contract is fully discharged by performance on bothare inclined to agree with Mr. Purshottam that the correspondence in this group clearly discloses an agreement for the execution of work between the Executive Engineer and the Patna Flooring Company, and the Election Tribunal was quite right in coming to this conclusion. But we may say that the Election Tribunal was not right in holding that Cl. 3 (c) got rid of Art. 299 of the Constitution. Any work which is given in exercise of the powers under Cl. 3 (c) has also to comply with the provisions of Art. 299 of the Constitution.It seems to us that the decision in. Chatturbhujs case, 1954 SCR 817 : (AIR 1954 SC 236 ), cannot be extended to cover a case where the Government has in fact not ratified the contract. If we were to hold that this type of transaction is covered then we would be giving no effect to the word "contract" in S. 7(d) and we would be substituting the word "agreement" for it. The Legislature has not chosen to use the word "agreement" but has used the word "contract" Therefore, a mere agreement entered into in contravention of Art. 299 and in fact not ratified cannot be called a "contract" within S. 7 (d) of the Representation of the Peopleis not doubt that the plaint in the money suit filed by the Patna Flooring Company shows that Bateshwar Prasad, plaintiff, was trying to make out that there was a direct contract entered into between the P. W. D. and plaintiff, but even so, the plaint does not make them solely responsible. We have also come to a finding that there was admittedly a contract in the beginning. The fact that the plaint does not allege any subsequent non-acceptance or refusal to ratify by the Government would not estop the respondent from proving in this case that on the material on record it is clear that the Government had not ratified the contract with the respondent, but confirmed the original contract with Saxena. The written statement filed by the Government in the money suit cannot be used to destroy the inference which clearly arises from the documents referred to above. It is doubtful whether the written statement can be taken into consideration at all.
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Iqbal Naseer Usmani Vs. Central Bank of India & Others | Srikrishna, J. Leave granted. 2. The appellant obtained a loan of Rs. 64,000/- from the first respondent on 30.5.1981 for the purchase of a motor vehicle under the terms of agreement between the appellant and the first respondent. The loan had to be discharged by payment of certain instalments. The appellant defaulted in repayment of this loan. First respondent filed Regular Suit No. 66 of 1991 for recovering the amount of Rs. 2,48,438.64 p. which represented the unpaid amount of loan together with accumulated interest thereon. The Civil Court by a decree dated 28.11.1995, decreed the said amount. The appellant filed an appeal against the said decree in Forma Pauperis with an application for being declared as a pauper. This application was rejected by the appellate court by order dated 4.4.2002. 3. Instead of executing the decree obtained against the appellant, the first respondent approached the Tehsildar, Gonda for issuing a certificate of recovery under the provisions of Section 3 of the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 (hereinafter referred to as the Act for short). The appellant was called upon to appear before the Tehsildar in connection with the amount claimed by the first respondent-Bank. Since the appellant failed to appear before the Tehsildar, a warrant was issued by the Tehsildar against the appellant to appear before the Tehsildar regarding recovery of the decretal amount. The appellant challenged the action taken by the Revenue Authority by his Writ Petition No. 4294 of 2004. The High Court dismissed the writ petition as devoid of merit. The appellant is before this Court to impugn the said judgment of the High Court. 4. The learned counsel for the appellant candidly admitted before us that he did not impugn the decree of the civil court in the proceedings before the High Court, nor does he impugn it before us. His contention is that whatever be the other modes of execution of the decree, the provisions of the Act were not available therefor. This is the only contention urged before us with which we are inclined to agree for the reason which follows. 5. As the preamble to the Act suggests, it is an Act to provide, inter alia for the speedy recovery of certain classes of dues payable to the State Government or to the Uttar Pradesh Financial Corporation or any other Corporation notified by the State Government in that behalf or to any nationalised or other Scheduled Bank or to a Government Company.... 6. There is no doubt that the first respondent is a banking company within the meaning of Section 2(f) of the Act. Section 3(b) of the Act provides that where any person is party to any agreement relating to a loan, advance or grant given to him or relating to credit in respect of, or relating to hire-purchase of goods sold to him, by a banking company or a Government company, as the case may be, under a State-sponsored scheme and such person makes any default in the payment of the loan or advance or any instalment thereof, on a certificate as to default along with a request from the concerned company to the Collector, the Collector shall proceed to recover the amount stated therein as arrears of land revenue. While there is no doubt that the appellant had obtained a loan from the first respondent-banking company and defaulted in repayment thereof, there is no evidence to suggest that the loan was relating to hire-purchase of goods sold to him under a State-Sponsored Scheme. The learned counsel for the respondent frankly conceded that the loan was not under any such State-sponsored scheme. In our view, the provisions of the Act are not intended to supplant the machinery for execution of all decrees under the provisions of the Code of Civil Procedure. They can only be utilised for recovery of sums due in the special cases enumerated in Section 3(1) of the Act. 7. Upon a perusal of the record, and after hearing learned counsel, we are not satisfied that the case of the appellant falls within the parameters of Section 3 of the Act. Consequently, the revenue officers have neither the authority to issue any certificate for recovery, nor the power to take any steps for recovery of the decretal amount. The High Court seems to have been impressed by the fact that the money was public money, and that in order to encourage development in the country, banks are providing loan facilities to persons who are willing to purchase vehicles and further that if such a loan is treated as a commercial loan, it would be difficult for the Bank to recover the same by filing a civil suit, which takes years and years to decide. According to the High Court the money of the Bank and financial institutions is public money, which should be in circulation, otherwise the Bank and depositors will suffer. We are afraid that while this may be very good sentiment, it cannot apply in the face of Section 3 of the Act for the reason that Section 3 does not envisage the provisions of the Act being utilised for recovery of every loan taken. Section 3(1)(b) permits this to be done only in respect of loans taken under a State-sponsored scheme, which expression has been defined in Section 2(g) of the Act. Since it is admitted that the loan by the appellant was not under or in relation to a State-sponsored Scheme within the meaning of Section 2(g), whatever else it may be, it would not be recoverable by recourse to the machinery under Section 3 of the Act. | 1[ds]According to the High Court the money of the Bank and financial institutions is public money, which should be in circulation, otherwise the Bank and depositors will suffer. We are afraid that while this may be very good sentiment, it cannot apply in the face of Section 3 of the Act for the reason that Section 3 does not envisage the provisions of the Act being utilised for recovery of every loan taken. Section 3(1)(b) permits this to be done only in respect of loans taken under a State-sponsored scheme, which expression has been defined in Section 2(g) of the Act. Since it is admitted that the loan by the appellant was not under or in relation to a State-sponsored Scheme within the meaning of Section 2(g), whatever else it may be, it would not be recoverable by recourse to the machinery under Section 3 of the Act | 1 | 1,040 | 174 | ### Instruction:
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Srikrishna, J. Leave granted. 2. The appellant obtained a loan of Rs. 64,000/- from the first respondent on 30.5.1981 for the purchase of a motor vehicle under the terms of agreement between the appellant and the first respondent. The loan had to be discharged by payment of certain instalments. The appellant defaulted in repayment of this loan. First respondent filed Regular Suit No. 66 of 1991 for recovering the amount of Rs. 2,48,438.64 p. which represented the unpaid amount of loan together with accumulated interest thereon. The Civil Court by a decree dated 28.11.1995, decreed the said amount. The appellant filed an appeal against the said decree in Forma Pauperis with an application for being declared as a pauper. This application was rejected by the appellate court by order dated 4.4.2002. 3. Instead of executing the decree obtained against the appellant, the first respondent approached the Tehsildar, Gonda for issuing a certificate of recovery under the provisions of Section 3 of the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 (hereinafter referred to as the Act for short). The appellant was called upon to appear before the Tehsildar in connection with the amount claimed by the first respondent-Bank. Since the appellant failed to appear before the Tehsildar, a warrant was issued by the Tehsildar against the appellant to appear before the Tehsildar regarding recovery of the decretal amount. The appellant challenged the action taken by the Revenue Authority by his Writ Petition No. 4294 of 2004. The High Court dismissed the writ petition as devoid of merit. The appellant is before this Court to impugn the said judgment of the High Court. 4. The learned counsel for the appellant candidly admitted before us that he did not impugn the decree of the civil court in the proceedings before the High Court, nor does he impugn it before us. His contention is that whatever be the other modes of execution of the decree, the provisions of the Act were not available therefor. This is the only contention urged before us with which we are inclined to agree for the reason which follows. 5. As the preamble to the Act suggests, it is an Act to provide, inter alia for the speedy recovery of certain classes of dues payable to the State Government or to the Uttar Pradesh Financial Corporation or any other Corporation notified by the State Government in that behalf or to any nationalised or other Scheduled Bank or to a Government Company.... 6. There is no doubt that the first respondent is a banking company within the meaning of Section 2(f) of the Act. Section 3(b) of the Act provides that where any person is party to any agreement relating to a loan, advance or grant given to him or relating to credit in respect of, or relating to hire-purchase of goods sold to him, by a banking company or a Government company, as the case may be, under a State-sponsored scheme and such person makes any default in the payment of the loan or advance or any instalment thereof, on a certificate as to default along with a request from the concerned company to the Collector, the Collector shall proceed to recover the amount stated therein as arrears of land revenue. While there is no doubt that the appellant had obtained a loan from the first respondent-banking company and defaulted in repayment thereof, there is no evidence to suggest that the loan was relating to hire-purchase of goods sold to him under a State-Sponsored Scheme. The learned counsel for the respondent frankly conceded that the loan was not under any such State-sponsored scheme. In our view, the provisions of the Act are not intended to supplant the machinery for execution of all decrees under the provisions of the Code of Civil Procedure. They can only be utilised for recovery of sums due in the special cases enumerated in Section 3(1) of the Act. 7. Upon a perusal of the record, and after hearing learned counsel, we are not satisfied that the case of the appellant falls within the parameters of Section 3 of the Act. Consequently, the revenue officers have neither the authority to issue any certificate for recovery, nor the power to take any steps for recovery of the decretal amount. The High Court seems to have been impressed by the fact that the money was public money, and that in order to encourage development in the country, banks are providing loan facilities to persons who are willing to purchase vehicles and further that if such a loan is treated as a commercial loan, it would be difficult for the Bank to recover the same by filing a civil suit, which takes years and years to decide. According to the High Court the money of the Bank and financial institutions is public money, which should be in circulation, otherwise the Bank and depositors will suffer. We are afraid that while this may be very good sentiment, it cannot apply in the face of Section 3 of the Act for the reason that Section 3 does not envisage the provisions of the Act being utilised for recovery of every loan taken. Section 3(1)(b) permits this to be done only in respect of loans taken under a State-sponsored scheme, which expression has been defined in Section 2(g) of the Act. Since it is admitted that the loan by the appellant was not under or in relation to a State-sponsored Scheme within the meaning of Section 2(g), whatever else it may be, it would not be recoverable by recourse to the machinery under Section 3 of the Act.
### Response:
1
### Explanation:
According to the High Court the money of the Bank and financial institutions is public money, which should be in circulation, otherwise the Bank and depositors will suffer. We are afraid that while this may be very good sentiment, it cannot apply in the face of Section 3 of the Act for the reason that Section 3 does not envisage the provisions of the Act being utilised for recovery of every loan taken. Section 3(1)(b) permits this to be done only in respect of loans taken under a State-sponsored scheme, which expression has been defined in Section 2(g) of the Act. Since it is admitted that the loan by the appellant was not under or in relation to a State-sponsored Scheme within the meaning of Section 2(g), whatever else it may be, it would not be recoverable by recourse to the machinery under Section 3 of the Act
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Chandrashekar Vs. Swapnil and Another | or before 10 September 2020. 4. Mr Deshpande states that until date the petitioner has paid an amount of Rs 6.80 lakhs towards maintenance. We direct that the amount which has been paid over shall be adjusted against the amount which is due and payable in terms of the above directions. 5. The petitioner shall also file his salary slips as on 31 March 2016, 31 March 2017, 31 March 2018, 31 March 2019 and for the period between January 2020 to July 2020 on affidavit before this Court. He shall also explain the nature of deductions which are being made from his salary. 6. List the Special Leave Petition after eight weeks. 4. In pursuance of the order passed by this Court, the appellant has filed IA No 96711/2020 making a disclosure of his salary slips for the months of March 2016, March 2017, March 2018, March 2019 and for the period between January and July 2020. The recent salary slips of the appellant indicate that he has a gross salary of Rs 45,529. The deductions from the gross salary are on account of (i) Professional tax (ii) Employees Group Insurance Scheme (iii) LIC policy (iv) General Provident Fund (v) Karnataka Government Insurance Department deduction and (vi) House Rent Allowance. In addition, it appears that the appellant had obtained a loan for which recoveries at the rate of Rs 9325 per month are being made from his salary towards a total outstanding of Rs 3.26 lakhs. Net of deductions, the salary which is payable to the appellant works out to Rs 20,979 per month. 5. It is not in dispute that inclusive of the amounts which have been paid over in pursuance of the order dated 29 July 2020 passed by this Court, the appellant has paid a total sum of Rs 6.64 lakhs towards maintenance to the first respondent. 6. The principal submission which has been urged on behalf of the appellant by the learned counsel, Mr Chinmay Deshpande is that the appellant is employed as a First Division Assistant in the Department of Health and Family Welfare of the Government of Karnataka; his salary being what has been referred to above, the payment of an amount of Rs 20,000 by way of maintenance would leave the appellant with virtually no resources to meet the maintenance requirements of his family which presently consists of his spouse and two minor children. After the divorce between the appellant and the second respondent, the second respondent got married again and has two children. 7. Mr Gaurav Agarwal, learned counsel appearing on behalf of the respondents has on the other hand submitted that the appellant cannot be excused from the obligation to maintain the first respondent, his minor son and considering the educational and other needs of the child, an amount of Rs 20,000 was fixed towards maintenance. At the same time, the learned counsel submitted that having regard to the salary slips which have been placed on record, the Court may take an appropriate view of the matter. Mr Agarwal also submitted that after the child completes his High School Board examinations, it would be appropriate if the appellant continues to maintain the first respondent for the period which would normally be undertaken to complete the first degree course thereafter. Learned Counsel urged that if such an arrangement is made by this Court, it would obviate a further round of litigation which would involve the parties in unnecessary delay and expense. 8. We are inclined to modify the order which has been passed by the Family Court and which has been affirmed by the High Court. This is for the reason that the appellant being an employee of the State Government, his salary slips for the relevant period which are available on the record can safely be relied upon as a true indicator of the income which he earns from his employment with the State. The deductions which are being suffered by the appellant from his salary are largely in the realm of statutory and compulsory deductions which are made from the monthly income. Apart from the statutory deductions, some amount is being deducted towards a loan outstanding which Mr Deshpande submits was obtained to meet the expenses incurred on the ailment of the mother of the appellant. The appellant has shown his bona fides by paying an amount of Rs 6.64 lakhs. He has made a disclosure of his salary slips. The net income being in the range indicated above, payment of Rs 20,000 per month to the first respondent will leave no resources to maintain his other two children and family. Hence, some scaling down is required. But an arrangement to provide maintenance to the first respondent until he completes the first degree course after High School will be necessary so that the first respondent becomes self-supporting and can live in dignity. Both the learned counsel have been fair and their approach to a human issue needs to be noticed and appreciated. They have truly performed the role of officers of the court. . 9. The Family Court had directed the appellant to provide maintenance to the first Respondent till he attains the age of majority. We are conscious of the fact that we are extending the period for maintenance in the terms indicated above. However, in issuing this direction, we have borne in mind two significant aspects: firstly, the maintenance payable by the appellant has been reduced from rupees twenty thousand per month to rupees ten thousand per month; and secondly the past arrears have been capped at the amount of Rs 6.64 lacs which has already been paid. Hence, exercising our jurisdiction under Article 142 of the Constitution we are inclined to pass an order in the interest of justice to envisage that maintenance at the reduced rate of rupees ten thousand per month will be provided by the appellant to the first Respondent until he completes his first degree course following upon the high-school board examinations. | 1[ds]8. We are inclined to modify the order which has been passed by the Family Court and which has been affirmed by the High Court. This is for the reason that the appellant being an employee of the State Government, his salary slips for the relevant period which are available on the record can safely be relied upon as a true indicator of the income which he earns from his employment with the State. The deductions which are being suffered by the appellant from his salary are largely in the realm of statutory and compulsory deductions which are made from the monthly income. Apart from the statutory deductions, some amount is being deducted towards a loan outstanding which Mr Deshpande submits was obtained to meet the expenses incurred on the ailment of the mother of the appellant. The appellant has shown his bona fides by paying an amount of Rs 6.64 lakhs. He has made a disclosure of his salary slips. The net income being in the range indicated above, payment of Rs 20,000 per month to the first respondent will leave no resources to maintain his other two children and family. Hence, some scaling down is required. But an arrangement to provide maintenance to the first respondent until he completes the first degree course after High School will be necessary so that the first respondent becomes self-supporting and can live in dignity. Both the learned counsel have been fair and their approach to a human issue needs to be noticed and appreciated. They have truly performed the role of officers of the court. .9. The Family Court had directed the appellant to provide maintenance to the first Respondent till he attains the age of majority. We are conscious of the fact that we are extending the period for maintenance in the terms indicated above. However, in issuing this direction, we have borne in mind two significant aspects: firstly, the maintenance payable by the appellant has been reduced from rupees twenty thousand per month to rupees ten thousand per month; and secondly the past arrears have been capped at the amount of Rs 6.64 lacs which has already been paid. Hence, exercising our jurisdiction under Article 142 of the Constitution we are inclined to pass an order in the interest of justice to envisage that maintenance at the reduced rate of rupees ten thousand per month will be provided by the appellant to the first Respondent until he completes his first degree course following upon the high-school board examinations. | 1 | 1,445 | 450 | ### Instruction:
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or before 10 September 2020. 4. Mr Deshpande states that until date the petitioner has paid an amount of Rs 6.80 lakhs towards maintenance. We direct that the amount which has been paid over shall be adjusted against the amount which is due and payable in terms of the above directions. 5. The petitioner shall also file his salary slips as on 31 March 2016, 31 March 2017, 31 March 2018, 31 March 2019 and for the period between January 2020 to July 2020 on affidavit before this Court. He shall also explain the nature of deductions which are being made from his salary. 6. List the Special Leave Petition after eight weeks. 4. In pursuance of the order passed by this Court, the appellant has filed IA No 96711/2020 making a disclosure of his salary slips for the months of March 2016, March 2017, March 2018, March 2019 and for the period between January and July 2020. The recent salary slips of the appellant indicate that he has a gross salary of Rs 45,529. The deductions from the gross salary are on account of (i) Professional tax (ii) Employees Group Insurance Scheme (iii) LIC policy (iv) General Provident Fund (v) Karnataka Government Insurance Department deduction and (vi) House Rent Allowance. In addition, it appears that the appellant had obtained a loan for which recoveries at the rate of Rs 9325 per month are being made from his salary towards a total outstanding of Rs 3.26 lakhs. Net of deductions, the salary which is payable to the appellant works out to Rs 20,979 per month. 5. It is not in dispute that inclusive of the amounts which have been paid over in pursuance of the order dated 29 July 2020 passed by this Court, the appellant has paid a total sum of Rs 6.64 lakhs towards maintenance to the first respondent. 6. The principal submission which has been urged on behalf of the appellant by the learned counsel, Mr Chinmay Deshpande is that the appellant is employed as a First Division Assistant in the Department of Health and Family Welfare of the Government of Karnataka; his salary being what has been referred to above, the payment of an amount of Rs 20,000 by way of maintenance would leave the appellant with virtually no resources to meet the maintenance requirements of his family which presently consists of his spouse and two minor children. After the divorce between the appellant and the second respondent, the second respondent got married again and has two children. 7. Mr Gaurav Agarwal, learned counsel appearing on behalf of the respondents has on the other hand submitted that the appellant cannot be excused from the obligation to maintain the first respondent, his minor son and considering the educational and other needs of the child, an amount of Rs 20,000 was fixed towards maintenance. At the same time, the learned counsel submitted that having regard to the salary slips which have been placed on record, the Court may take an appropriate view of the matter. Mr Agarwal also submitted that after the child completes his High School Board examinations, it would be appropriate if the appellant continues to maintain the first respondent for the period which would normally be undertaken to complete the first degree course thereafter. Learned Counsel urged that if such an arrangement is made by this Court, it would obviate a further round of litigation which would involve the parties in unnecessary delay and expense. 8. We are inclined to modify the order which has been passed by the Family Court and which has been affirmed by the High Court. This is for the reason that the appellant being an employee of the State Government, his salary slips for the relevant period which are available on the record can safely be relied upon as a true indicator of the income which he earns from his employment with the State. The deductions which are being suffered by the appellant from his salary are largely in the realm of statutory and compulsory deductions which are made from the monthly income. Apart from the statutory deductions, some amount is being deducted towards a loan outstanding which Mr Deshpande submits was obtained to meet the expenses incurred on the ailment of the mother of the appellant. The appellant has shown his bona fides by paying an amount of Rs 6.64 lakhs. He has made a disclosure of his salary slips. The net income being in the range indicated above, payment of Rs 20,000 per month to the first respondent will leave no resources to maintain his other two children and family. Hence, some scaling down is required. But an arrangement to provide maintenance to the first respondent until he completes the first degree course after High School will be necessary so that the first respondent becomes self-supporting and can live in dignity. Both the learned counsel have been fair and their approach to a human issue needs to be noticed and appreciated. They have truly performed the role of officers of the court. . 9. The Family Court had directed the appellant to provide maintenance to the first Respondent till he attains the age of majority. We are conscious of the fact that we are extending the period for maintenance in the terms indicated above. However, in issuing this direction, we have borne in mind two significant aspects: firstly, the maintenance payable by the appellant has been reduced from rupees twenty thousand per month to rupees ten thousand per month; and secondly the past arrears have been capped at the amount of Rs 6.64 lacs which has already been paid. Hence, exercising our jurisdiction under Article 142 of the Constitution we are inclined to pass an order in the interest of justice to envisage that maintenance at the reduced rate of rupees ten thousand per month will be provided by the appellant to the first Respondent until he completes his first degree course following upon the high-school board examinations.
### Response:
1
### Explanation:
8. We are inclined to modify the order which has been passed by the Family Court and which has been affirmed by the High Court. This is for the reason that the appellant being an employee of the State Government, his salary slips for the relevant period which are available on the record can safely be relied upon as a true indicator of the income which he earns from his employment with the State. The deductions which are being suffered by the appellant from his salary are largely in the realm of statutory and compulsory deductions which are made from the monthly income. Apart from the statutory deductions, some amount is being deducted towards a loan outstanding which Mr Deshpande submits was obtained to meet the expenses incurred on the ailment of the mother of the appellant. The appellant has shown his bona fides by paying an amount of Rs 6.64 lakhs. He has made a disclosure of his salary slips. The net income being in the range indicated above, payment of Rs 20,000 per month to the first respondent will leave no resources to maintain his other two children and family. Hence, some scaling down is required. But an arrangement to provide maintenance to the first respondent until he completes the first degree course after High School will be necessary so that the first respondent becomes self-supporting and can live in dignity. Both the learned counsel have been fair and their approach to a human issue needs to be noticed and appreciated. They have truly performed the role of officers of the court. .9. The Family Court had directed the appellant to provide maintenance to the first Respondent till he attains the age of majority. We are conscious of the fact that we are extending the period for maintenance in the terms indicated above. However, in issuing this direction, we have borne in mind two significant aspects: firstly, the maintenance payable by the appellant has been reduced from rupees twenty thousand per month to rupees ten thousand per month; and secondly the past arrears have been capped at the amount of Rs 6.64 lacs which has already been paid. Hence, exercising our jurisdiction under Article 142 of the Constitution we are inclined to pass an order in the interest of justice to envisage that maintenance at the reduced rate of rupees ten thousand per month will be provided by the appellant to the first Respondent until he completes his first degree course following upon the high-school board examinations.
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The Pabbojan Tea Co. Ltd., Etc Vs. The Deputy Commissioner, Lakhimpur, Etc | the officer concerned although he was given the powers of a civil court in certain respects. In such a situation it is impossible to hold that the Legislature meant to exclude the jurisdiction of civil courts to go into the question of non-payment of minimum wages claimed as final. In our opinion, sub-s. (6) of S. 20 merely shows that the discretion of the Authority could not be questioned under any provision of the Act. It does not exclude the jurisdiction of the civil court when the challenge is as to the applicability of the Act to a certain class of workers.14. It is pertinent to note that S. 24 of the Act creates an express bar in respect of a particular kind of suits, namely, suits for recovery of wages in certain eventualities. The obvious intention was that a poor employee was not to be driven to file a suit for the payment of the deficit of his wages but that he could avail himself of the machinery provided by the Act to get quick relief. It does not in terms bar the employer from instituting a suit when his claim is that he has been called upon to pay wages and compensation to persons to who are not governed by the notification under the Minimum Wages Act.15. On an analysis of the provisions of the Act, we find (1) suits of the nature to be found in this case are not expressly barred by the Act; (2) There is no provision for appeal or revision from the direction of the authority given under S. 20 (3) of the Act; and (3) The authority acting under S. 20 (3) might levy a penalty which might be as high as ten times the alleged deficit of payment which again is not subject to any further scrutiny by any higher authority. In view of our findings as above, as also the fact that the authority in this case disregarded the provision as to hearing and inquiry contained in the Act for all practical purposes, we hold that the civil court had jurisdiction to entertain the suits.16. The question next arises as to whether the plaintiffs made out any case for relief. In our view, the plaintiffs were clearly entitled to relief. The notification dated March 11, 1952 was clearly applicable only to "ordinary skilled labour".The word ordinary has in our opinion, some significance. It means "usual, not exceptional. In other words, ordinary unskilled labour must mean unskilled labour prepared to work and working in the ordinary way.If under Rule 24 of the rules framed under this Act the period of work is fixed at nine hours a day, a labourer who can not work for more than half of it, does not fall within the category of ordinary unskilled labour. A Lettera Challan cannot work due to his incapacity, old age, infirmity etc. According to the evidence of the managers of the tea gardens, they were unwilling to work for more than half the day because of their physical condition. It was due to their want or physical strength to work for nine hours a day and not the inability or unwillingness of the employer to find employment for them for a full day. Take for instance the facts in Pabbojan companys case. According to the evidence of its manager, the labour force in the estate consisted of 1650 labour while the number of sub-normal workers was 83 before March 30, 1952. It cannot be suggested that if the tea garden could provide work for 1567 labourers working nine hours a day, it could not do so for an additional number of 83 persons. As the manager said, these persons were unwilling to perform the normal tasks which were available to them as normal labourers. The manager also said that lettera challans (sub-normal workers) always go off at I1 or 12 mid-day. Take again the evidence of Bairagi, a worker of the Rupai Tea Estate. He said that some years before he was examined in court, he used to work as a carpenter. As a result of a fall from a house, he had pain on his chest and approached the doctor and requested him to enter his name as lettera challan. He frankly admitted that he got into lettera challan because he could not complete the full task. The evidence of the managers and of this the only witness on this point on behalf of labour establishes beyond doubt that lettera challans could not work a full day and as such they were not ordinary unskilled labour.As such their case would be covered by the proviso to Section 15 and they would not be entitled to receive wages for a full normal working day because of their unwillingness to work. It does not matter whether some of the lettera challans could also be said to be disabled employees who would come within the purview of Section 26 (1) of the Act.From the evidence of the managers, it is clear that the system of lettera challans had been in force for very many years. The record does not show nor are we in a position to guess why an exception was not made in their case in the notification.But even in the absence of any mention of lettera challans in the notification, sub-normal workers who are unwilling to work for more than half a day are not entitled to receive what ordinary unskilled labourers; working nine hours a day get. The object of the Act is to ensure some sort of industrial peace and harmony by providing that labour cannot be exploited and must at least be provided with wages which are fixed at certain minimum rates. It would go against such a principle if the courts were to uphold that persons who cannot work for more than half a day should receive what others working a full day get. However, that is a matter which the appropriate government may consider. | 1[ds]14. It is pertinent to note that S. 24 of the Act creates an express bar in respect of a particular kind of suits, namely, suits for recovery of wages in certain eventualities. The obvious intention was that a poor employee was not to be driven to file a suit for the payment of the deficit of his wages but that he could avail himself of the machinery provided by the Act to get quick relief. It does not in terms bar the employer from instituting a suit when his claim is that he has been called upon to pay wages and compensation to persons to who are not governed by the notification under the Minimum Wages Act.15. On an analysis of the provisions of the Act, we find (1) suits of the nature to be found in this case are not expressly barred by the Act; (2) There is no provision for appeal or revision from the direction of the authority given under S. 20 (3) of the Act; and (3) The authority acting under S. 20 (3) might levy a penalty which might be as high as ten times the alleged deficit of payment which again is not subject to any further scrutiny by any higher authority. In view of our findings as above, as also the fact that the authority in this case disregarded the provision as to hearing and inquiry contained in the Act for all practical purposes, we hold that the civil court had jurisdiction to entertain theour view, the plaintiffs were clearly entitled to relief. The notification dated March 11, 1952 was clearly applicable only to "ordinary skilled labour".The word ordinary has in our opinion, some significance. It means "usual, not exceptional. In other words, ordinary unskilled labour must mean unskilled labour prepared to work and working in the ordinary way.If under Rule 24 of the rules framed under this Act the period of work is fixed at nine hours a day, a labourer who can not work for more than half of it, does not fall within the category of ordinary unskilled labour. A Lettera Challan cannot work due to his incapacity, old age, infirmity etc. According to the evidence of the managers of the tea gardens, they were unwilling to work for more than half the day because of their physical condition. It was due to their want or physical strength to work for nine hours a day and not the inability or unwillingness of the employer to find employment for them for a full day. Take for instance the facts in Pabbojan companys case. According to the evidence of its manager, the labour force in the estate consisted of 1650 labour while the number of sub-normal workers was 83 before March 30, 1952. It cannot be suggested that if the tea garden could provide work for 1567 labourers working nine hours a day, it could not do so for an additional number of 83 persons. As the manager said, these persons were unwilling to perform the normal tasks which were available to them as normal labourers. The manager also said that lettera challans (sub-normal workers) always go off at I1 or 12 mid-day. Take again the evidence of Bairagi, a worker of the Rupai Tea Estate. He said that some years before he was examined in court, he used to work as a carpenter. As a result of a fall from a house, he had pain on his chest and approached the doctor and requested him to enter his name as lettera challan. He frankly admitted that he got into lettera challan because he could not complete the full task. The evidence of the managers and of this the only witness on this point on behalf of labour establishes beyond doubt that lettera challans could not work a full day and as such they were not ordinary unskilled labour.As such their case would be covered by the proviso to Section 15 and they would not be entitled to receive wages for a full normal working day because of their unwillingness to work. It does not matter whether some of the lettera challans could also be said to be disabled employees who would come within the purview of Section 26 (1) of the Act.From the evidence of the managers, it is clear that the system of lettera challans had been in force for very many years. The record does not show nor are we in a position to guess why an exception was not made in their case in the notification.But even in the absence of any mention of lettera challans in the notification, sub-normal workers who are unwilling to work for more than half a day are not entitled to receive what ordinary unskilled labourers; working nine hours a day get. The object of the Act is to ensure some sort of industrial peace and harmony by providing that labour cannot be exploited and must at least be provided with wages which are fixed at certain minimum rates. It would go against such a principle if the courts were to uphold that persons who cannot work for more than half a day should receive what others working a full day get. However, that is a matter which the appropriate government may consider. | 1 | 6,481 | 962 | ### Instruction:
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### Input:
the officer concerned although he was given the powers of a civil court in certain respects. In such a situation it is impossible to hold that the Legislature meant to exclude the jurisdiction of civil courts to go into the question of non-payment of minimum wages claimed as final. In our opinion, sub-s. (6) of S. 20 merely shows that the discretion of the Authority could not be questioned under any provision of the Act. It does not exclude the jurisdiction of the civil court when the challenge is as to the applicability of the Act to a certain class of workers.14. It is pertinent to note that S. 24 of the Act creates an express bar in respect of a particular kind of suits, namely, suits for recovery of wages in certain eventualities. The obvious intention was that a poor employee was not to be driven to file a suit for the payment of the deficit of his wages but that he could avail himself of the machinery provided by the Act to get quick relief. It does not in terms bar the employer from instituting a suit when his claim is that he has been called upon to pay wages and compensation to persons to who are not governed by the notification under the Minimum Wages Act.15. On an analysis of the provisions of the Act, we find (1) suits of the nature to be found in this case are not expressly barred by the Act; (2) There is no provision for appeal or revision from the direction of the authority given under S. 20 (3) of the Act; and (3) The authority acting under S. 20 (3) might levy a penalty which might be as high as ten times the alleged deficit of payment which again is not subject to any further scrutiny by any higher authority. In view of our findings as above, as also the fact that the authority in this case disregarded the provision as to hearing and inquiry contained in the Act for all practical purposes, we hold that the civil court had jurisdiction to entertain the suits.16. The question next arises as to whether the plaintiffs made out any case for relief. In our view, the plaintiffs were clearly entitled to relief. The notification dated March 11, 1952 was clearly applicable only to "ordinary skilled labour".The word ordinary has in our opinion, some significance. It means "usual, not exceptional. In other words, ordinary unskilled labour must mean unskilled labour prepared to work and working in the ordinary way.If under Rule 24 of the rules framed under this Act the period of work is fixed at nine hours a day, a labourer who can not work for more than half of it, does not fall within the category of ordinary unskilled labour. A Lettera Challan cannot work due to his incapacity, old age, infirmity etc. According to the evidence of the managers of the tea gardens, they were unwilling to work for more than half the day because of their physical condition. It was due to their want or physical strength to work for nine hours a day and not the inability or unwillingness of the employer to find employment for them for a full day. Take for instance the facts in Pabbojan companys case. According to the evidence of its manager, the labour force in the estate consisted of 1650 labour while the number of sub-normal workers was 83 before March 30, 1952. It cannot be suggested that if the tea garden could provide work for 1567 labourers working nine hours a day, it could not do so for an additional number of 83 persons. As the manager said, these persons were unwilling to perform the normal tasks which were available to them as normal labourers. The manager also said that lettera challans (sub-normal workers) always go off at I1 or 12 mid-day. Take again the evidence of Bairagi, a worker of the Rupai Tea Estate. He said that some years before he was examined in court, he used to work as a carpenter. As a result of a fall from a house, he had pain on his chest and approached the doctor and requested him to enter his name as lettera challan. He frankly admitted that he got into lettera challan because he could not complete the full task. The evidence of the managers and of this the only witness on this point on behalf of labour establishes beyond doubt that lettera challans could not work a full day and as such they were not ordinary unskilled labour.As such their case would be covered by the proviso to Section 15 and they would not be entitled to receive wages for a full normal working day because of their unwillingness to work. It does not matter whether some of the lettera challans could also be said to be disabled employees who would come within the purview of Section 26 (1) of the Act.From the evidence of the managers, it is clear that the system of lettera challans had been in force for very many years. The record does not show nor are we in a position to guess why an exception was not made in their case in the notification.But even in the absence of any mention of lettera challans in the notification, sub-normal workers who are unwilling to work for more than half a day are not entitled to receive what ordinary unskilled labourers; working nine hours a day get. The object of the Act is to ensure some sort of industrial peace and harmony by providing that labour cannot be exploited and must at least be provided with wages which are fixed at certain minimum rates. It would go against such a principle if the courts were to uphold that persons who cannot work for more than half a day should receive what others working a full day get. However, that is a matter which the appropriate government may consider.
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14. It is pertinent to note that S. 24 of the Act creates an express bar in respect of a particular kind of suits, namely, suits for recovery of wages in certain eventualities. The obvious intention was that a poor employee was not to be driven to file a suit for the payment of the deficit of his wages but that he could avail himself of the machinery provided by the Act to get quick relief. It does not in terms bar the employer from instituting a suit when his claim is that he has been called upon to pay wages and compensation to persons to who are not governed by the notification under the Minimum Wages Act.15. On an analysis of the provisions of the Act, we find (1) suits of the nature to be found in this case are not expressly barred by the Act; (2) There is no provision for appeal or revision from the direction of the authority given under S. 20 (3) of the Act; and (3) The authority acting under S. 20 (3) might levy a penalty which might be as high as ten times the alleged deficit of payment which again is not subject to any further scrutiny by any higher authority. In view of our findings as above, as also the fact that the authority in this case disregarded the provision as to hearing and inquiry contained in the Act for all practical purposes, we hold that the civil court had jurisdiction to entertain theour view, the plaintiffs were clearly entitled to relief. The notification dated March 11, 1952 was clearly applicable only to "ordinary skilled labour".The word ordinary has in our opinion, some significance. It means "usual, not exceptional. In other words, ordinary unskilled labour must mean unskilled labour prepared to work and working in the ordinary way.If under Rule 24 of the rules framed under this Act the period of work is fixed at nine hours a day, a labourer who can not work for more than half of it, does not fall within the category of ordinary unskilled labour. A Lettera Challan cannot work due to his incapacity, old age, infirmity etc. According to the evidence of the managers of the tea gardens, they were unwilling to work for more than half the day because of their physical condition. It was due to their want or physical strength to work for nine hours a day and not the inability or unwillingness of the employer to find employment for them for a full day. Take for instance the facts in Pabbojan companys case. According to the evidence of its manager, the labour force in the estate consisted of 1650 labour while the number of sub-normal workers was 83 before March 30, 1952. It cannot be suggested that if the tea garden could provide work for 1567 labourers working nine hours a day, it could not do so for an additional number of 83 persons. As the manager said, these persons were unwilling to perform the normal tasks which were available to them as normal labourers. The manager also said that lettera challans (sub-normal workers) always go off at I1 or 12 mid-day. Take again the evidence of Bairagi, a worker of the Rupai Tea Estate. He said that some years before he was examined in court, he used to work as a carpenter. As a result of a fall from a house, he had pain on his chest and approached the doctor and requested him to enter his name as lettera challan. He frankly admitted that he got into lettera challan because he could not complete the full task. The evidence of the managers and of this the only witness on this point on behalf of labour establishes beyond doubt that lettera challans could not work a full day and as such they were not ordinary unskilled labour.As such their case would be covered by the proviso to Section 15 and they would not be entitled to receive wages for a full normal working day because of their unwillingness to work. It does not matter whether some of the lettera challans could also be said to be disabled employees who would come within the purview of Section 26 (1) of the Act.From the evidence of the managers, it is clear that the system of lettera challans had been in force for very many years. The record does not show nor are we in a position to guess why an exception was not made in their case in the notification.But even in the absence of any mention of lettera challans in the notification, sub-normal workers who are unwilling to work for more than half a day are not entitled to receive what ordinary unskilled labourers; working nine hours a day get. The object of the Act is to ensure some sort of industrial peace and harmony by providing that labour cannot be exploited and must at least be provided with wages which are fixed at certain minimum rates. It would go against such a principle if the courts were to uphold that persons who cannot work for more than half a day should receive what others working a full day get. However, that is a matter which the appropriate government may consider.
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Bollavaram Pedda Narsi Reddy And Ors Vs. State Of Andhra Pradesh | even persons who collected at the scene in the course of the incidence or soon thereafter were not in a position to identify any one of the assailants. Since the Investigating Officer arrived at the scene the same night and the inquest was held in the next morning, it would have been possible for the investigating agency to collect information regarding the identity of the assailants earlier to 18.8.1974, if they had been really identified by any one of the witnesses examined in the case. When no natural light was available and the street light was at a distance it is unlikely that the eye witnesses by momentary glance of the assailants who surrounded the victim had a lasting impression and the chance of identifying the assailants without mistake. The credibility of the evidence relating to the identification depends largely on the opportunity the witness had to observe the assailants when the crime was committed and memorize the impression. This aspect of the matter had been stressed by the trial court in appreciating the evidence of PWs 1 and 2. The High Court has ignored the inherent infirmity and failed to deal effectively with every important circumstance in the evidence which weighed with the trial court to disbelieve the prosecution case. 11. We have noticed that the magistrates in conducting the test identification parade have committed a grave error. In the case of Accused No.6 PW-9 had mixed up along with PWs 1 and 2 a person, Gulati who knew the accused. Similarly, in the identification of the other accused, PW-4 who claimed acquaintance with Accused Nos.2, 3 and 5 was mixed up with PWs 1 and 2. When persons who have already known the accused persons to be identified are mixed up with the witnesses, the test identification is clearly vitiated and is futile. Value of identification parade depends on the effectiveness and the precautions taken against the identifying witness having and opportunity of seeing the persons to be identified before they are paraded with others and also against the identifying witness being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned. Therefore, the evidence of the earlier identification in this case is unacceptable. The testimony of PWs 1 and 2 before court is also unsafe to be acted upon. 12. Thus we do not consider that the view taken by the learned sessions judge on the whole was erroneous. The overall view of the evidence taken by the learned sessions judge is reasonable and plausible, while it is true that some of the reasons given if taken individually do not appear to be substantial. Even when two evenly balanced views of the evidence are possible one must necessarily concede the existence of a reasonable doubt. Thus on a careful and anxious consideration of the evidence in the light of the reasoning adopted by the trial court as well as the High Court, we are of the opinion that the High Court was not justified in interfering with the order of acquittal when the identity and involvement of the appellants had not been established beyond reasonable doubt. We accordingly allow the appeal, set aside the conviction and sentence and maintain the order of acquittal. The bail bonds of the appellants shall stand cancelled. TNA Appeal allowed light was available and the street light was distance it is unlikely that the eye witnesses by monetary glance of the assailants who surrounded the victim had a lasting impression and the chance of identifying the assailants without mistake. The credibility of the evidence relating to the identification depends largely on the opportunity the witness had to observe the assailants when the crime was committed and memorize the impression. This aspect of the matter had been stressed by the trial court in appreciating the evidence of PWs 1 and 2. The High Court has ignored the inherent infirmity and failed to deal effectively with the important circumstance in the evidence which weighted with the trial court to disbelieve the prosecution case. We have noticed that the magistrates in conducting the test identification parade have committed a grave error. In the case of Accused No. 6 PW-9 had mixed up along with PWs 1 and 2 a person, Gulati who knew the accused. Similarly, in the identification of the other accused, PW-4 who claimed acquaintance with Accused Nos. 2, 3 and 5 was mixed up with PWs 1 and 2. When persons who have already known the accused persons to be identified are mixed up with the witnesses, the test identification is clearly vitiated and is futile. Value of identification parade depends on the the effectiveness and the precautions taken against the identifying witness having an opportunity of seeing the persons to be identified before they are paraded with others and also against the identifying witness being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned. Therefore, the evidence of the earlier identification in this case is unacceptable. The testimony of PWs 1 and 2 before court is also unsafe to be acted upon. Thus we do not consider that the view taken by the learned sessions judge on the whole was erroneous. The overall view of the evidence taken by the learned sessions judge is reasonable and plausible, while it is true that some of the reasons given if taken individually do not appear to be substantial. Even when two evenly balanced views of the evidence are possible one must necessarily concede the existence of a reasonable doubt. Thus on a careful and anxious consideration of the evidence in the light of the reasoning adopted by the trial court as well as the High Court, we are of the opinion that the High Court was not justified in interfering with the order of acquittal when the identity and involvement of the appellants had not been established beyond reasonable doubt. | 1[ds]It is well-settled proposition of law that in an appeal against acquittal, the Appellate Court is empowered to evaluate the evidence and arrive at its own conclusion. It is equally settled law that where the view taken by the trial court or an appreciation of the evidence is also a plausible view, the Appellate Court shall be slow to interfere with it even when a different view is possible on a reappraisal of the evidence. The learned counsel for the appellants pointed out that the High Court in reversing the order of acquittal in this case had departed from these established principles and had thus erred grievously in convicting the appellants. It was submitted that the conviction recorded by the High Court essentially rests on the testimony of PWs 1 and 2. When the serious infirmities in the evidence of the other two eye witnesses PWs 3 and 4 had been brought to the notice of the High Court, it has eschewed that evidence and has placed reliance only on the testimony of PWs 1 and 2 in arriving at the conclusion that the appellants are guilty of the offence. The appellants learned counsel, therefore, contended that if the view taken by the trial court on the testimony of PWs 1 and 2 cannot be characterised as perverse or wholly unreasonable, there is no justification for the High Court to accept that evidence as the basis of a conviction even if in its opinion the evidence of these two witnesses could have been relied on. The main plank of the argument of the learned counsel is that the witnesses being strangers to the assailants when there are circumstances to show that they did not have the opportunity to identify the assailants, their evidence involving these appellants is not free from doubt and, therefore the trial court had taken the reasonable view that it is unsafe for the court to accept that evidence to convict the accused persons. We see considerable force in the contention of the learned counsel for the appellants.In the present case, the appellants are admittedly persons with whom the two witnesses had no previous acquaintance. The occurrence happened on a dark night. When the crime was committed during the hours of darkness and the assailants are utter strangers to the witnesses, the identification of the accused persons assumes great importance. The prevailing light is a matter of crucial significance. The necessity to have the suspects identified by the witnesses soon after their arrest also arises. According to the prosecution, the attack on the deceased was sudden and simultaneous and the assailants slipped away in no time. Both PWs 1 and 2 had deposed that they were attracted by the explosion and when they turned back, the assailants surrounded the deceased and inflicted the stab injuries. PW-1 was pushed aside. He fell on the fence of the barbed wire of the transformer, received scratches. His dhoti stuck to the wire. He left it there and ran to the police station in utter confusion. His P-1 does not disclose that PW-2 accompanied him, though PWs 1 and 2 stated before court that they went together. The possibility of the companions of the deceased having been scattered and gone in different directions cannot be ruled out. Even in Ex.P-1 statement what PW-1 said is that six persons attacked the deceased; they were villagers; they were wearing dhoti and kurta. One was about 45 years of age and of dark complexion, another was 30 years of age lean and yet another was also a lean person. These may be the vague impression the witness had on seeing the assailants suddenly. It is not however in evidence that the description given by PW-1 in Ex. p-1 fits in with the description of any one of the appellants. When the magistrates recorded the statements of the witnesses, they could not give any characteristic feature of any one of the assailants. The entire case depends on the identification of the appellants and the identification is founded solely on the test identification parades.10. Therefore, in the absence of cogent evidence that PWs 1 and 2 by reason of the visibility of the light at the place of occurrence and proximity to the assailants had a clear vision of the action of each one of the accused persons in order that their features could get impressed in their mind to enable them to recollect the same and identify the assailants even after a long lapse of time, it would be hazardous to draw the inference that the appellants are the real assailants. There is no whisper in Ex. P-1 that there was some source of light at the scene. The omission cannot be ignored as insignificant. When the Investigating Officer has visited the scene, he made reference to the street lights, petrol bunk light etc. Whether the street lights and the petrol bunk/ light had been burning at the time of the occurrence and the spot where the incidence happened was so located as to receive the light emanating from these sources are required to be made out by the prosecution. When this significant fact is left out in the earliest record, the improvement in the course of the investigation and trial could be of no avail. The fact that there had been no proof regarding the identity of the assailants until 18.8.1974 would suggest that even persons who collected at the scene in the course of the incidence or soon thereafter were not in a position to identify any one of the assailants. Since the Investigating Officer arrived at the scene the same night and the inquest was held in the next morning, it would have been possible for the investigating agency to collect information regarding the identity of the assailants earlier to 18.8.1974, if they had been really identified by any one of the witnesses examined in the case. When no natural light was available and the street light was at a distance it is unlikely that the eye witnesses by momentary glance of the assailants who surrounded the victim had a lasting impression and the chance of identifying the assailants without mistake. The credibility of the evidence relating to the identification depends largely on the opportunity the witness had to observe the assailants when the crime was committed and memorize the impression. This aspect of the matter had been stressed by the trial court in appreciating the evidence of PWs 1 and 2. The High Court has ignored the inherent infirmity and failed to deal effectively with every important circumstance in the evidence which weighed with the trial court to disbelieve the prosecution case.Thus we do not consider that the view taken by the learned sessions judge on the whole was erroneous. The overall view of the evidence taken by the learned sessions judge is reasonable and plausible, while it is true that some of the reasons given if taken individually do not appear to be substantial. Even when two evenly balanced views of the evidence are possible one must necessarily concede the existence of a reasonable doubt. Thus on a careful and anxious consideration of the evidence in the light of the reasoning adopted by the trial court as well as the High Court, we are of the opinion that the High Court was not justified in interfering with the order of acquittal when the identity and involvement of the appellants had not been established beyond reasonable doubt. We accordingly allow the appeal, set aside the conviction and sentence and maintain the order of acquittal. The bail bonds of the appellants shall stand cancelled. TNA Appeal allowed light was available and the street light was distance it is unlikely that the eye witnesses by monetary glance of the assailants who surrounded the victim had a lasting impression and the chance of identifying the assailants without mistake. The credibility of the evidence relating to the identification depends largely on the opportunity the witness had to observe the assailants when the crime was committed and memorize the impression. This aspect of the matter had been stressed by the trial court in appreciating the evidence of PWs 1 and 2. The High Court has ignored the inherent infirmity and failed to deal effectively with the important circumstance in the evidence which weighted with the trial court to disbelieve the prosecution case. We have noticed that the magistrates in conducting the test identification parade have committed a grave error. In the case of Accused No. 6 PW-9 had mixed up along with PWs 1 and 2 a person, Gulati who knew the accused. Similarly, in the identification of the other accused, PW-4 who claimed acquaintance with Accused Nos. 2, 3 and 5 was mixed up with PWs 1 and 2. When persons who have already known the accused persons to be identified are mixed up with the witnesses, the test identification is clearly vitiated and is futile. Value of identification parade depends on the the effectiveness and the precautions taken against the identifying witness having an opportunity of seeing the persons to be identified before they are paraded with others and also against the identifying witness being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned. Therefore, the evidence of the earlier identification in this case is unacceptable. The testimony of PWs 1 and 2 before court is also unsafe to be acted upon. Thus we do not consider that the view taken by the learned sessions judge on the whole was erroneous. The overall view of the evidence taken by the learned sessions judge is reasonable and plausible, while it is true that some of the reasons given if taken individually do not appear to be substantial. Even when two evenly balanced views of the evidence are possible one must necessarily concede the existence of a reasonable doubt. Thus on a careful and anxious consideration of the evidence in the light of the reasoning adopted by the trial court as well as the High Court, we are of the opinion that the High Court was not justified in interfering with the order of acquittal when the identity and involvement of the appellants had not been established beyond reasonable doubt. | 1 | 3,638 | 1,821 | ### 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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even persons who collected at the scene in the course of the incidence or soon thereafter were not in a position to identify any one of the assailants. Since the Investigating Officer arrived at the scene the same night and the inquest was held in the next morning, it would have been possible for the investigating agency to collect information regarding the identity of the assailants earlier to 18.8.1974, if they had been really identified by any one of the witnesses examined in the case. When no natural light was available and the street light was at a distance it is unlikely that the eye witnesses by momentary glance of the assailants who surrounded the victim had a lasting impression and the chance of identifying the assailants without mistake. The credibility of the evidence relating to the identification depends largely on the opportunity the witness had to observe the assailants when the crime was committed and memorize the impression. This aspect of the matter had been stressed by the trial court in appreciating the evidence of PWs 1 and 2. The High Court has ignored the inherent infirmity and failed to deal effectively with every important circumstance in the evidence which weighed with the trial court to disbelieve the prosecution case. 11. We have noticed that the magistrates in conducting the test identification parade have committed a grave error. In the case of Accused No.6 PW-9 had mixed up along with PWs 1 and 2 a person, Gulati who knew the accused. Similarly, in the identification of the other accused, PW-4 who claimed acquaintance with Accused Nos.2, 3 and 5 was mixed up with PWs 1 and 2. When persons who have already known the accused persons to be identified are mixed up with the witnesses, the test identification is clearly vitiated and is futile. Value of identification parade depends on the effectiveness and the precautions taken against the identifying witness having and opportunity of seeing the persons to be identified before they are paraded with others and also against the identifying witness being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned. Therefore, the evidence of the earlier identification in this case is unacceptable. The testimony of PWs 1 and 2 before court is also unsafe to be acted upon. 12. Thus we do not consider that the view taken by the learned sessions judge on the whole was erroneous. The overall view of the evidence taken by the learned sessions judge is reasonable and plausible, while it is true that some of the reasons given if taken individually do not appear to be substantial. Even when two evenly balanced views of the evidence are possible one must necessarily concede the existence of a reasonable doubt. Thus on a careful and anxious consideration of the evidence in the light of the reasoning adopted by the trial court as well as the High Court, we are of the opinion that the High Court was not justified in interfering with the order of acquittal when the identity and involvement of the appellants had not been established beyond reasonable doubt. We accordingly allow the appeal, set aside the conviction and sentence and maintain the order of acquittal. The bail bonds of the appellants shall stand cancelled. TNA Appeal allowed light was available and the street light was distance it is unlikely that the eye witnesses by monetary glance of the assailants who surrounded the victim had a lasting impression and the chance of identifying the assailants without mistake. The credibility of the evidence relating to the identification depends largely on the opportunity the witness had to observe the assailants when the crime was committed and memorize the impression. This aspect of the matter had been stressed by the trial court in appreciating the evidence of PWs 1 and 2. The High Court has ignored the inherent infirmity and failed to deal effectively with the important circumstance in the evidence which weighted with the trial court to disbelieve the prosecution case. We have noticed that the magistrates in conducting the test identification parade have committed a grave error. In the case of Accused No. 6 PW-9 had mixed up along with PWs 1 and 2 a person, Gulati who knew the accused. Similarly, in the identification of the other accused, PW-4 who claimed acquaintance with Accused Nos. 2, 3 and 5 was mixed up with PWs 1 and 2. When persons who have already known the accused persons to be identified are mixed up with the witnesses, the test identification is clearly vitiated and is futile. Value of identification parade depends on the the effectiveness and the precautions taken against the identifying witness having an opportunity of seeing the persons to be identified before they are paraded with others and also against the identifying witness being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned. Therefore, the evidence of the earlier identification in this case is unacceptable. The testimony of PWs 1 and 2 before court is also unsafe to be acted upon. Thus we do not consider that the view taken by the learned sessions judge on the whole was erroneous. The overall view of the evidence taken by the learned sessions judge is reasonable and plausible, while it is true that some of the reasons given if taken individually do not appear to be substantial. Even when two evenly balanced views of the evidence are possible one must necessarily concede the existence of a reasonable doubt. Thus on a careful and anxious consideration of the evidence in the light of the reasoning adopted by the trial court as well as the High Court, we are of the opinion that the High Court was not justified in interfering with the order of acquittal when the identity and involvement of the appellants had not been established beyond reasonable doubt.
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each one of the accused persons in order that their features could get impressed in their mind to enable them to recollect the same and identify the assailants even after a long lapse of time, it would be hazardous to draw the inference that the appellants are the real assailants. There is no whisper in Ex. P-1 that there was some source of light at the scene. The omission cannot be ignored as insignificant. When the Investigating Officer has visited the scene, he made reference to the street lights, petrol bunk light etc. Whether the street lights and the petrol bunk/ light had been burning at the time of the occurrence and the spot where the incidence happened was so located as to receive the light emanating from these sources are required to be made out by the prosecution. When this significant fact is left out in the earliest record, the improvement in the course of the investigation and trial could be of no avail. The fact that there had been no proof regarding the identity of the assailants until 18.8.1974 would suggest that even persons who collected at the scene in the course of the incidence or soon thereafter were not in a position to identify any one of the assailants. Since the Investigating Officer arrived at the scene the same night and the inquest was held in the next morning, it would have been possible for the investigating agency to collect information regarding the identity of the assailants earlier to 18.8.1974, if they had been really identified by any one of the witnesses examined in the case. When no natural light was available and the street light was at a distance it is unlikely that the eye witnesses by momentary glance of the assailants who surrounded the victim had a lasting impression and the chance of identifying the assailants without mistake. The credibility of the evidence relating to the identification depends largely on the opportunity the witness had to observe the assailants when the crime was committed and memorize the impression. This aspect of the matter had been stressed by the trial court in appreciating the evidence of PWs 1 and 2. The High Court has ignored the inherent infirmity and failed to deal effectively with every important circumstance in the evidence which weighed with the trial court to disbelieve the prosecution case.Thus we do not consider that the view taken by the learned sessions judge on the whole was erroneous. The overall view of the evidence taken by the learned sessions judge is reasonable and plausible, while it is true that some of the reasons given if taken individually do not appear to be substantial. Even when two evenly balanced views of the evidence are possible one must necessarily concede the existence of a reasonable doubt. Thus on a careful and anxious consideration of the evidence in the light of the reasoning adopted by the trial court as well as the High Court, we are of the opinion that the High Court was not justified in interfering with the order of acquittal when the identity and involvement of the appellants had not been established beyond reasonable doubt. We accordingly allow the appeal, set aside the conviction and sentence and maintain the order of acquittal. The bail bonds of the appellants shall stand cancelled. TNA Appeal allowed light was available and the street light was distance it is unlikely that the eye witnesses by monetary glance of the assailants who surrounded the victim had a lasting impression and the chance of identifying the assailants without mistake. The credibility of the evidence relating to the identification depends largely on the opportunity the witness had to observe the assailants when the crime was committed and memorize the impression. This aspect of the matter had been stressed by the trial court in appreciating the evidence of PWs 1 and 2. The High Court has ignored the inherent infirmity and failed to deal effectively with the important circumstance in the evidence which weighted with the trial court to disbelieve the prosecution case. We have noticed that the magistrates in conducting the test identification parade have committed a grave error. In the case of Accused No. 6 PW-9 had mixed up along with PWs 1 and 2 a person, Gulati who knew the accused. Similarly, in the identification of the other accused, PW-4 who claimed acquaintance with Accused Nos. 2, 3 and 5 was mixed up with PWs 1 and 2. When persons who have already known the accused persons to be identified are mixed up with the witnesses, the test identification is clearly vitiated and is futile. Value of identification parade depends on the the effectiveness and the precautions taken against the identifying witness having an opportunity of seeing the persons to be identified before they are paraded with others and also against the identifying witness being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned. Therefore, the evidence of the earlier identification in this case is unacceptable. The testimony of PWs 1 and 2 before court is also unsafe to be acted upon. Thus we do not consider that the view taken by the learned sessions judge on the whole was erroneous. The overall view of the evidence taken by the learned sessions judge is reasonable and plausible, while it is true that some of the reasons given if taken individually do not appear to be substantial. Even when two evenly balanced views of the evidence are possible one must necessarily concede the existence of a reasonable doubt. Thus on a careful and anxious consideration of the evidence in the light of the reasoning adopted by the trial court as well as the High Court, we are of the opinion that the High Court was not justified in interfering with the order of acquittal when the identity and involvement of the appellants had not been established beyond reasonable doubt.
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Jindal Stainless Ltd. and Ors Vs. State of Haryana and Ors | expressed regarding high rates of taxation, it would be apposite to rely on the observations of Marshall, CJ, in McCulloch v. Maryland 17 US 316 (1819), that the only security against the abuse of such power lies in the structure of the government itself. Article 304(a) 147. In regard to the question whether the levy of entry tax on import of goods from outside the local area in the State will be per se discriminatory if goods similar to those imported are not produced or manufactured within the State, I find it difficult to agree with the conclusion that a tax on goods imported into a State can be levied even if similar goods are not manufactured or produced in the importing State. I would agree with the conclusion drawn by Ashok Bhushan, J., in this regard. Article 304 reads as follows: Restrictions on trade, commerce and intercourse among States.-Notwithstanding anything in Article 301 or Article 303, the Legislature of a State may by law- (a) impose on goods imported from other States [or the Union territories] any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced; and (b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest: Provided that no Bill or amendment for the purposes of Clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President. 148. The non-discriminatory principle is embedded in two provisions of Part XIII: Article 303(1)-Parliament cannot impose restrictions Under Article 302 and make a discriminatory law under any entry relating to trade and commerce; the other is Article 304(a) which (unlike Section 297 of the erstwhile Government of India Act, 1935 which prohibited-through a negative mandate, discriminatory treatment) empowers State Legislatures to impose non-discriminatory taxes on goods. Thus, Article 304(a) differentiates between discriminatory and non-discriminatory taxes. The premise underlying this provision is the paramount aim of Part XIII to establish and foster economic unity of the country. Non-discrimination, or parity of treatment is therefore at the core of its purpose, which Shri T.T. Krishnamachari stressed, in his speech in the Constituent Assembly. He said that restrictions by the State have to be prevented so that the particular idiosyncrasy of some people in power or narrow provincial policies of certain States should not be allowed to come into play and affect the general economy of the country. [Constituent Assembly Debates, 1139 (1949)]. 149. The Article, therefore, recognizes the power of a Legislature to a State to impose the tax on the imported goods so, however, as not to discriminate between goods so imported and goods so manufactured or produced. While there is no doubt that this Article recognizes the power to legislate on a State, it equally qualifies that power with the condition that such a law must comply with. That condition is that the law which imposes a tax on imported goods cannot discriminate between goods so imported and the goods so manufactured or produced. It also postulates that the tax on import is a tax to which similar goods manufactured or produced in that State are subject. The Article thus imposes two conditions: firstly, that a law may impose a tax on goods imported from other States, any tax to which similar goods manufactured or produced in that State are subject. This clearly implies that the goods imported from other States may be subjected to a tax where similar goods are in fact, manufactured or produced in the importing State and are subjected to tax. In other words, (a) the goods imported from other States must be similar to (b) the goods manufactured or produced in the importing State and (c) the goods so locally manufactured or produced must be subject to tax. The second condition is the tax that is imposed on imported goods should not discriminate between the imported goods and goods manufactured or produced in the importing State. 150. The intention of the Article thus, clearly is that where a tax exists on goods imported into a State there should be no discrimination between such a tax and a tax on similar goods manufactured or produced in the importing State. The reference point for tax on imported goods is the tax on locally manufactured goods. It is not possible to construe the prohibition against discrimination where there is no tax upon similar goods manufactured or produced in the importing State. Undoubtedly, the effect of such a construction is that the imported goods cannot be taxed where similar goods are not manufactured or produced in the importing State and are therefore, not subjected to similar tax and that seems to be the clear intention of this Article. 151. In the normal course, a State in which certain goods are not manufactured would rely on the supply of such goods from other States and the effect of this provision would be to make the goods so imported available without the additional burden of tax. In sum, the premise on which tax can be imposed is the existence of not mere taxes on goods produced or manufactured locally, or the theoretical possibility of taxation, to avoid the prohibition Under Article 304(a), but the actual production or manufacture of similar goods, that are subject to like or similar tax. Absent this condition, the levy would fall foul of Article 304(a) since it would constitute an additional burden (the goods already having suffered some form of taxation in the producing state). This interpretation, in my opinion would also further economic progress and the unhindered availability of goods in states which do not have manufacturing capacities and may not be able to develop it, having regard to lack of natural resources or other geographical limitations. It also furthers the aims underlying Article 301 of the Constitution of India. Conclusion | 1[ds]Re: Question No. 111. Whether non-discriminatory fiscal measures also impede free trade, commerce and intercourse and thereby fall foul of Article 301 of the Constitution can be answered only if one keeps in view the Constitutional scheme underlying separation of powers in a federal system of governance like the one chosen by us. The answer would also depend upon the way we look at, understand and interpret the provisions of the Constitution and in particular the provisions of Parts XI, XII and XIII thereof. Interpretation of these and indeed every other provision must have due regard to what are recognised as the basic features of the Constitution. In doing so, the approach of the Courts can neither be rigid nor wooden or pedantic. Being a living and dynamic document, the Constitution ought to receive an equally dynamic and pragmatic interpretation that harmonizes and balances competing aims and objectives and promotes attainment of national goals and objectives.12. It is trite that a narrow interpretation that may have the potential or tendency to subvert the delicate balance which the framers of the Constitution had in mind while distributing legislative businesses including the sovereign power to levy taxes must be avoided and a construction that is most beneficial for a harmonious relationship between different limbs of the State including that between the Centre and the States or States inter se adopted. This may, at times, involve ironing out of rough edges which exercise a Constitutional Court must necessarily undertake to avoid confusion and resultant negation of the Constitutional objectives.13. Having said so, we must sail smooth on certain fundamentals before we address the question whether levy of taxes per se operate as an impediment or restriction on the right to free trade, commerce and intercourse. That is because a true and correct answer to Question No. 1 can be found only if we constantly keep those fundamentals in mind while attempting to resolve what has been found to be somewhat difficult to resolve. For instance, whether levy of a tax is an attribute of sovereignty and if so whether Article 246 of the Constitution recognises the sovereign power of the State to make laws including the power to levy taxes on subjects enumerated in List II of the Seventh Schedule of the Constitution is an important dimension that must be addressed as a part of the interpretative exercise. So also, we must examine whether power to tax if held to be subservient to Article 301, shall have the effect of denuding the States of their sovereignty in the matter of levy of taxes and in the process affect the federal structure of the policy envisaged by the Constitution. If levy of taxes is always presumed to be reasonable and in public interest, whether such levies could be said to be within the contemplation of Article 304(b) when it provided for imposition of reasonable restrictions in public interest is yet another aspect that must be explored especially when the reasonableness of any restriction within the comprehension of Article 304(b) is not free from judicial scrutiny by Courts. These are some of the broad and fundamental issues that need to be examined before we attempt to answer the question whether levy of taxes per se acts as an impediment for free trade, commerce and intercourse. We may now briefly refer to these fundamentals before adverting to the provisions of Part XIII that fall for our interpretation.Power to Tax: an Attribute of sovereignty14. Power to levy taxes has been universally acknowledged as an essential attribute of sovereignty. Cooley in his Book on Taxation-Volume-1 (4th Edn.) in Chapter-2 recognises the power of taxation to be inherent in a sovereign State.17. In Commissioner of Income Tax, Udiapur, Rajasthan v. MCdowell and Co. Ltd. (2009) 10 SCC 755 where this Court reiterated the legal position in the following words:21. Tax, duty, cess or fee constituting a class denotes to various kinds of imposts by State in its sovereign power of taxation to raise revenue for the State. Within the expression of each specie each expression denotes different kind of impost depending on the purpose for which they are levied. This power can be exercised in any of its manifestation only under any law authorising levy and collection of tax as envisaged Under Article 265 which uses only the expression that no tax shall be levied and collected except authorised by law. It in its elementary meaning conveys that to support a tax legislative action is essential, it cannot be levied and collected in the absence of any legislative sanction by exercise of executive power of State Under Article 73 by the Union or Article 162 by the State.22. Under Article 366(28) Taxation has been defined to include the imposition of any tax or impost whether general or local or special and tax shall be construed accordingly. Impost means compulsory levy. The well-known and well-settled characteristic of tax in its wider sense includes all imposts. Imposts in the context have following characteristics:(i) The power to tax is an incident of sovereignty.(ii) Law in the context of Article 265 means an Act of legislature and cannot comprise an executive order or Rule without express statutory authority.(iii) The term tax Under Article 265 read with Article 366(28) includes imposts of every kind viz. tax, duty, cess or fees.(iv) As an incident of sovereignty and in the nature of compulsory exaction, a liability founded on principle of contract cannot be a tax in its technical sense as an impost, general, local or special.Power of Taxation under the Constitution:18. We shall presently turn to the Constitutional limitations on the sovereign power to tax but before we do so we need to point out that while the power to levy taxes is an attribute of sovereignty, exercise of that power is controlled by the Constitution. This is evident from the provisions of Article 265 which forbids levy or recovery of any tax except by the authority of law.The result is that the power to tax cannot be deduced from a general legislative entry. That view was approved by a Constitution Bench of this Court in State of West Bengal v. Kesoram Industries Ltd. (2004) 10 SCC 201. The propositions stated in the two decisions must therefore be treated to be fairly well settled.19. Interpreting Articles 245 and 246, a three-Judge Bench of this Court in M/s. Hoechst Pharmaceuticals Ltd. and Ors. v. State of Bihar and Ors. (1983) 4 SCC 45 , held on a review of the available decisions that the Constitution effects a complete separation of taxing powers of the Union and the States Under Article 246 and that there is no overlapping anywhere in the exercise of that power. The sources of taxation are clearly delineated, observed the Court. The Court also held that there is a distinction between general subjects of legislation and taxation for the former are dealt within one group while the later is dealt with in a separate group.The result is that the power to tax cannot be deduced from a general legislative entry. That view was approved by a Constitution Bench of this Court in State of West Bengal v. Kesoram Industries Ltd. (2004) 10 SCC 201. The propositions stated in the two decisions must therefore be treated to be fairly well settled.Reference may also be made to the decision of this Court in State of Kerala and Ors. v. Mar Appraem Kuri Co. Ltd. and Anr.(2012) 7 SCC 106 where this Court explained the sweep and purport of Articles 245 and 246:35. Article 245 deals with extent of laws made by Parliament and by the legislatures of States. The verb made, in past tense, finds place in the Head Note to Article 245. The verb make, in the present tense, exists in Article 245(1) whereas the verb made, in the past tense, finds place in Article 245(2). While the legislative power is derived from Article 245, the entries in the Seventh Schedule of the Constitution only demarcate the legislative fields of the respective legislatures and do not confer legislative power as such. While Parliament has power to make laws for the whole or any part of the territory of India, the legislature of a State can make laws only for the State or part thereof. Thus, Article 245 inter alia indicates the extent of laws made by Parliament and by the State Legislatures.36. Article 246 deals with the subject-matter of laws made by Parliament and by the legislatures of States. The verb made once again finds place in the Head Note to Article 246. This Article deals with distribution of legislative powers as between the Union and the State Legislatures, with reference to the different Lists in the Seventh Schedule. In short, Parliament has full and exclusive powers to legislate with respect to matters in List I and has also power to legislate with respect to matters in List III, whereas the State Legislatures, on the other hand, have exclusive power to legislate with respect to matters in List II, minus matters falling in List I and List III and have concurrent power with respect to matters in List III. (See Subrahmanyan Chettiar v. Muttuswami Goundan)37. Article 246, thus, provides for distribution, as between Union and the States, of the legislative powers which are conferred by Article 245. Article 245 begins with the expression subject to the provisions of this Constitution. Therefore, Article 246 must be read as subject to other provisions of the Constitution.38. For the purposes of this decision, the point which needs to be emphasised is that Article 245 deals with conferment of legislative powers whereas Article 246 provides for distribution of the legislative powers. Article 245 deals with extent of laws whereas Article 246 deals with distribution of legislative powers. In these articles, the Constitution Framers have used the word make and not commencement which has a specific legal connotation. [See Section 3(13) of the General Clauses Act, 1897.](Emphasis supplied)20. Exercise of sovereign power is, however, subject to Constitutional limitations especially in a federal system like ours where the States also to the extent permissible exercise the power to make laws including laws that levy taxes, duties and fees. That the power to levy taxes is subject to constitutional limitations is no longer res-integra.27. It would thus appear that even when Article 246(2) and (3) confers exclusive power on the State legislatures to make laws with respect to matters in the Seventh Schedule such legislative power is exercisable subject to constitutional limitations referred to above. What is significant is that the power of the State legislatures to levy taxes is also subject to the limitations of Article 304(a) of the Constitution appearing in Part XIII thereof, which part regulates trade, commerce and intercourse within the territory of India and comprises Articles 301 to 307. The provisions of these Articles have been the subject matter of a series of decisions of this Court including several Constitution Bench decisions to some of which we shall presently refer. The language employed in the provisions and the non-obstante clauses with which the same start have all the same given rise to several contentious issues for determination by this Court over the past five decades or so. The fact that the present batch of cases had to be referred to a Nine-Judge Bench to once again examine the very same issues as have been debated and determined in the previous judgments of this Court only shows that the task of interpreting the provisions is by no means easy and has in fact become more and more difficult on account of the pronouncements of this Court taking different views not many of which have been unanimous. The marked difference in the approach adopted by learned Counsel for the parties in these appeals is also a measure of the complexities of issues that fall for determination. This is specially so because the prevailing legal position in terms of the judgment of this Court in Atiabari and Automobile cases (supra) holding that fiscal measures that are compensatory fall beyond the mischief of Article 301 has been questioned by both sides. Mr. Harish Salve who led the forensic exercise followed by M/s. Arvind Datar, Laxmi Kumaran, Ravindra Shrivastava, N. Venkataraman and others vehemently argued that the Compensatory Tax Theory propounded by the Seven Judges Bench of this Court in Automobile case (supra) had no legal basis or constitutional sanction and was neither acceptable nor workable. That is particularly so because the State legislatures had taken umbrage under the Compensatory Tax Theory and declared the fiscal levies imposed by them to be compensatory in character and claimed the same to be outside the mischief of Article 301 and consequently immune from any challenge on the ground that these taxes and levies were unreasonable restrictions on the right to free trade and commerce. The States who have enacted the laws providing for levy of taxes on the entry of goods into a local area within the meaning of Entry 52 of List II have, on the other hand similarly contended that the Compensatory Tax Theory is bereft of any legal basis and that the decision in Atiabari and Automobile cases (supra) need to be revisited to restore and protect the sovereign power of legislation of the States and the Federal character of our policy. Suffice it to say that except a feeble attempt made by some Counsel, there has been a general consensus that the compensatory tax theory deserves to be rejected and the issues examined afresh on a true and correct interpretation of the relevant constitutional provisions. We are mentioning all this only to show that even after fifty years and several illuminating pronouncements of this Court, the cleavage in the judicial opinion as to the true and correct legal position on the subject continues to loom large and haunt lawyers and litigants and, if we may say so, even Judges alike. The present reference to a larger Bench is in that backdrop expected to give a quietus to this raging legal controversy of considerable complexity, though given the perseverance of the litigants and the ingenuity of the bar a quietus is only a pious hope which has and may even in future elude us.Constitutional Limitations must be Express:28. The power to levy taxes, being a sovereign power controlled only by the Constitution, any limitation on that power must be express.32. Whether or not the Constitution provides a federal structure for the governance of the country has been the subject matter of a long line of decisions of this Court, reference to all of which may be unnecessary but the legal position appears to be fairly well settled that the Constitution provides for a quasi federal character with a strong bias towards the Centre. The pronouncements recognised the proposition that even when Constitution may not be strictly federal in its character as the United States of America, where sovereign States came together to constitute a federal union, where each State enjoins a privilege of having a Constitution of its own, the significant feature of a federal Constitution are found in the Indian Constitution which makes it a quasi federal Constitution, if not truly federal in character and in stricto sensu federal.55. The Constituent Assembly Debates suggests that the introduction of Articles 274A to 274E was severely criticized by several members of the Assembly including Thakur Das Bhargava and Dr. P.S. Deshmukh who moved several amendments to these clauses but the same were rejected and Articles 274-A to 274-E including Articles 274DD and 274DDD were adopted without any modification. These Articles are now renumbered and appear as Articles 301 to 307 of the Constitution of India.56. It is in the above backdrop that question No. 1 shall have to be answered which turns on a true and correct interpretation of Article 301 of the Constitution. We must at the threshold say that while attempting to answer the question we are not on virgin ground, for this Court has in Atiabari Tea Company case (supra) examined the matter at great length. The decision of this Court in Automobile case (supra) has modified the view in Atiabari, by bringing in the concept of compensatory taxes which this Court held to be outside Part XIII of the Constitution.57. While J.C. Shah, J. took the view that all taxes regardless whether they are discriminatory or otherwise would constitute an impediment on free trade and commerce guaranteed Under Article 301 of the Constitution of India, Sinha, CJ., held that taxes per se were totally outside the purview of Article 301 and could never constitute a restriction except where the same operated as a fiscal barrier that prevented free trade, commerce and intercourse. The view taken by Justice Shah, J. was not supported by any one of the counsel appearing for the parties for it was candidly accepted that the same was an extreme view that was legally unsupportable.59. Before we examine the rival submissions, we must also refer to the decision of this Court in Automobile case (supra) which added a new dimension to the legal exposition in Atiabari case (supra) by declaring that taxes that were compensatory in nature fell outside Part XIII and could never be treated as restrictions offensive to Article 301 of the Constitution.62. The net effect of the decision in Automobile case (supra) is that taxes, if the same are compensatory in character, do not offend the guarantee of free trade, commerce and intercourse Under Article 301 of the Constitution. The further question whether the compensatory character of a tax has to be determined by reference to the direct and substantial benefits/facilities provided by the State to the tax payer was examined and answered in the affirmative in Jindal Stainless Steel case (supra), where this Court while overruling the decisions in Bhagatram and Bihar Chamber of Commerce cases (supra) declared that it is not just a remote benefit to the tax payer but only a direct and substantial benefit that would justify levy of compensatory taxes without offending Article 301 of the Constitution of India.63. The legal position that today holds the field in light of the above is that compensatory taxes would fall outside Part XIII of the Constitution only if tax payers receive benefits and facilities commensurate to the levy. Any and every benefit howsoever remote or distant, would not save the levy from an attack on the ground of violation of Article 301. Having said that we must mention to the credit of the learned Counsel for the dealers/Assessees that except a feeble attempt made by Mr. A.K. Ganguly, learned Counsel appearing for Sony India Pvt. Ltd. and Mr. Bagaria, learned Counsel appearing for Steel Authority of India Limited (SAIL) the rest of the counsel fairly accepted that there was no constitutional or juristic basis for the Compensatory Tax Theory propounded by the majority judgment in Automobile Transport case (supra).Mr. Salve, who led the team of lawyers appearing for the dealers/Assessees also did not support the compensatory tax theory propounded in Automobile case (supra).It may, in the light of the concessions made at the Bar, have become unnecessary for us to deal with this aspect at any length but since M/s. Ganguly and Bagaria have not fully subscribed to the views urged by their colleagues appearing for the dealers, we are left with no option but to squarely deal with the question whether the Compensatory Tax Theory is indeed sustainable. Three distinct aspects touching the question need be noticed straightaway. The first and the foremost of these aspects is that the concept of compensatory taxes is not recognised by the Constitution.If taxes are eventually meant to serve larger public good and for running the governmental machinery and providing to the people the facilities essential for civilized living, there is no question of a tax being non-compensatory in character in the broader sense.64. Secondly, because the concept of compensatory tax obliterates the distinction between a tax and a fee. The essential difference between a tax and a fee is that while a tax has no element of quid pro quo, a fee without that element cannot be validly levied. The difference between a tax and the fee has been examined and elaborated in a long line of decisions of this Court. (See: Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., AIR 1954 SC 282 , Mahant Sri Jagannath Ramanuj Das and Anr. v. State of Orissa and Anr.,AIR 1954 SC 400 , The Hingir-Rampur Coal Co. Ltd. v. State of Orissa ., AIR 1961 SC 459 ), Corporation of Calcutta and Anr. v. Liberty Cinema., AIR 1965 SC 1107 , Kewal Krishna Puri and Anr. v. State of Punjab., (1980) 1 SCC 416 , Krishi Upaj Mandi Samiti and Ors. v. Orient Paper and Industries Ltd., (1995) 1 SCC 655 ), State of Gujarat and Anr. v. Akhil Gujarat Pravasi V.S. Mahamandal., (2004) 5 SCC 155 : State of West Bengal v. Kesoram Industries Ltd. and Ors. (2004) 10 SCC 201. 65. Thirdly, and lastly, the concept of Compensatory taxes being outside Part XIII, is difficult to apply in actual practice. Experience in the present batch of cases has amply demonstrated that difficulty. Most of the legislations enacted by the States in these cases have described the entry tax levied under the same to be compensatory in character. This may have been done to take the levy outside the mischief of Article 301 of the Constitution. The question however is whether tax amount collected in terms of the said legislation is really used by the State for the purpose of providing or maintaining services and benefits to the tax payers and whether the Courts can follow the money trail to determine whether the State concerned has actually used the amount for the avowed purpose underlying the legislation. This process is fraught with serious difficulties, a fact that was not disputed by learned Counsel for the Assessees/dealers. Actual application of the Compensatory Tax Theory, therefore, runs into difficulties to an extent that the theory at some stage breaks down. M/s. Salve, Rohatgi and Dwivedi were in that view perfectly justified in submitting that the Compensatory Tax Theory was legally unsupportable and deserved to be abandoned. We have no hesitation in agreeing with that submission, the arguments of M/s. Ganguly and Bagaria to the contrary notwithstanding.68. A careful reading of the above would show that notwithstanding the power vested in the Parliament Under Article 302, it shall not make any law giving, or authorising the giving of any preference to one State over another, or making, or authorising the making of, any discrimination between one State and another, by virtue of any entry relating to trade and commerce in any of the Lists in the Seventh Schedule. From Clause (2) of Article 303 (supra) it is manifest that the restriction on the power vested in Parliament in terms of Clause (1) of Article 303 shall not extend to Parliament making any law with a view to giving or authorising the giving of, any preference or making, or authorising the making of, any discrimination if it is declared by such law that it is necessary to do so for the purpose of dealing with a situation arising out of scarcity. A conjoint reading of Clauses (1) and (2) of Article 303 would thus make it clear that while Parliament/Legislature of a State shall have no power to make a law imposing restriction on trade, commerce and intercourse, by giving or authorizing the giving of any preference to one State over the other, such limitation on the legislative power of Parliament shall not extend to giving of any preference or making or authorizing any discrimination if it is declared by law that a situation has arisen out of scarcity of goods that makes it necessary to do so. In other words, while the Parliament may impose restrictions in public interest Under Article 302, the restriction so imposed shall not be in the nature of giving preference or discrimination between one State or the other except when the law declares that scarcity of goods in any part of India necessitates such preference or discrimination.69. That brings us to Article 304 of the Constitution which too like Articles 302 and 303 deals with restrictions on the freedom of trade, commerce and intercourse.The Article starts with a non-obstante Clause which has been the subject matter of forensic debates in several cases. We do not for the present propose to address the effect of the non-obstante Clause at this stage or the interplay between the expression subject to appearing in Article 301 and the non obstante Clause in Article 304. We shall turn to that aspect a little later.What we wish to examine is whether Article 304(a) treats taxes as a restriction so that any such levy may fall foul of Article 301. The answer to that question, we say without any hesitation is in the negative. Article 304(a) far from treating taxes as a restriction per se, specifically recognises the State legislatures power to impose the same on goods imported from other States or Union Territories. The expression the legislature of a State may by law impose on goods imported from other States (or Union Territories) any tax are much too clear and specific to be capable of any equivocation or confusion. It is true that the source of power available to the State legislature to levy a tax is found in Articles 245 and 246 of the Constitution but, the availability of such power for taxing goods imported from other States or Union Territories is clearly recognised by Article 304(a). The expression may by law impose is certainly not a restriction on the power to tax. That does not, however, mean that the power to tax goods imported from other States or Union Territories is unqualified or unrestricted. There are, in our opinion, two restrictions on that power. The words to which similar goods manufactured or produced in that State are subject impose the first restriction on the power of the State legislature to levy any such tax. These words would imply that a tax on import of goods from other States will be justified only if similar goods manufactured or produced in the State are also taxed. The second restriction comes from the expression so, however, as not to discriminate between goods so imported and goods so manufactured or produced. The State legislature cannot in the matter of levying taxes discriminate between goods imported from other States and those manufactured or produced within the State levying such a tax. The net effect of Article 304(a) therefore is that while levy of taxes on goods imported from others State and Union territories is clearly recognised as Constitutionally permissible, the exercise of such power is subject to the two restrictive conditions referred to above. That does not however detract from the proposition that levy of taxes on goods imported from other States is constitutionally permissible so long as the State legislatures abide by the limitations placed on the exercise of that power. To put it differently, levy of taxes on import of goods from other States is not by itself an impediment under the scheme of Part XIII or Article 301 appearing therein.71. There is, in our opinion, no merit in any of the contentions noted above. Clauses (a) and (b) of Article 304 deal with two distinct subjects and must, therefore, be understood to be independent of each other. While Clause (a) deals entirely with imposition of taxes on goods imported from other States, Clause (b) deals with imposition of reasonable restriction in public interest. It is trite that levy of a tax in terms of Article 304(a) may or may not be accompanied by the imposition of any restriction whether reasonable or unreasonable. There is, in our opinion, no rationale in the contention that the legislature of a State cannot levy a tax without imposing one or more reasonable restrictions or that a law that is simply imposing restrictions in terms of Clause (b) to Article 304 must be accompanied by the levy of a tax on the import of goods. The use of the word and between Clauses (a) and (b) does not admit of an interpretation that may impose an obligation upon the legislature to necessarily impose a tax and a restriction together. The law may simply impose a tax without any restriction reasonable or otherwise or it may simply impose a reasonable restriction in public interest without imposing any tax whatsoever. It may also levy a tax and impose such reasonable restriction as may be considered necessary in public interest. All the three situations are fully covered and permissible Under Article 304 in view of the phraseology used therein. The word and can mean or as well as and depending upon the context in which the law enacted by the legislature uses the same. Suffice it to say that levy of taxes do not constitute a restriction under Part XIII except in cases where the same are discriminatory in nature. Once Article 304(a) is understood in that fashion, Clause (b) dealing with reasonable restrictions must necessarily apply to restrictions other than those by way of taxes. It follows that for levy of taxes prior Presidential sanction in terms of the proviso Under Article 304(b) will be wholly unnecessary. This view is reinforced on the plain language of proviso to Article 304(b), which is limited to law relating to reasonable restrictions referred to in Clause (b).72. The sum total of what we have said above regarding Articles 301, 302, 303304 may be summarized as under:1. Freedom of trade, commerce and intercourse in terms of Article 301 is not absolute but is subject to the Provisions of Part XIII.2. Article 302 which appears in Part XIII empowers the Parliament to impose restrictions on trade, commerce and intercourse in public interest.3. The restrictions which Parliament may impose in terms of Article 302 cannot however give any preference to one State over another by virtue of any entry relating to trade and commerce in any of the lists in the Seventh Schedule.4. The restriction that the Parliament may impose in terms of Article 302 may extend to giving of preference or permitting discrimination between one State over another only if Parliament by law declares that a situation arising out of scarcity of goods warrants such discrimination or preference.5. Article 304(a) recognizes the availability of the power to impose taxes on goods imported from other States, the legislative power to do so being found in Articles 245 and 246 of the Constitution.6. Such power to levy taxes is however subject to the condition that similar goods manufactured or produced in the State levying the tax are also subjected to tax and that there is no discrimination on that account between goods so imported and goods so manufactured or produced.7. The limitation on the power to levy taxes is entirely covered by Clause (a) of Article 304 which exhausts the universe in so far as the State legislatures power to levy of taxes is concerned.8. Resultantly a discriminatory tax on the import of goods from other States alone will work as an impediment on free trade, commerce and intercourse within the meaning of Article 301.9. Reasonable restrictions in public interest referred to in Clause (b) of Article 304 do not comprehend levy of taxes as a restriction especially when taxes are presumed to be both reasonable and in public interest.73. The inferences enumerated above are based on a textual interpretation of the provisions of Article 301 to Article 304. An interpretation which is both textual and contextual has always been found to be more acceptable. That is so because it is only when both the text and the context are kept in view that the statutory provisions can be best understood. An interpretation that makes the textual match the contextual meaning of the provision is preferred by Courts over one that prefers one at the cost of the other.With India attaining its freedom, Part XIII of the Constitution adopted by it, was aimed at bringing about economic unity. The object underlying Part XIII was to make movement and exchange of goods free throughout the territory of India. This was achieved by Article 301 to Article 304 adopting substantially the scheme underlying the 1935 Act. The only difference between the said provisions and Section 297 of the 1935 Act was that the principles enunciated in the latter were extended to the Union Government and the Union Parliament and to the territory which had after merger become a part of India. Notably, the essence of the freedom of trade commerce and intercourse as recognized in the 1935 Act and in the Constitution under Part XIII remained the same. It was for that reason that Justice Venkatarama Iyer had in M.P.V. Sunderaramiers case (Supra) observed and if we may say so rightly that the Constitution of India was not written on a tabula rasa. The common feature which the two provisions share is that the provincial legislatures power to impose taxes is recognized subject only to the limitation that there is no discrimination between goods manufactured or produced within the Province or State vis-a-vis those imported from outside. In Atiabaris case (supra), the majority speaking through Gajendragadkar, J. noticed the co-relation between Section 297 of 1935 Act, and Article 301 of the Constitution of India but concluded that Article 301 did not simply adopt Section 297 of the 1935 Act but widened and enriched the same in content. The Court did not, however, elaborate as to how much richer and wider did Article 301 make the freedom of trade, commerce and intercourse then what was envisaged Under Section 297.The Court did not, however, elaborate as to how much richer and wider did Article 301 make the freedom of trade, commerce and intercourse then what was envisaged Under Section 297.The Court said:42. ... ... ...That is why we are inclined to hold that the broad and unambiguous words used in Article 301 are intended to emphasize that the freedom of trade, commerce and intercourse guaranteed was richer and wider in content than was the case Under Section 297; how much wider and how much richer can be determined only on a fair and reasonable construction of Article 301 read along with the rest of the articles in Part XIII. In our opinion therefore, the argument that tax laws are outside Part XIII cannot be accepted.(Emphasis supplied)78. We have with great respect to the distinguished Judges failed to persuade ourselves to subscribe to the above view. The argument that Article 301 had enriched and widened the content of trade, commerce and intercourse beyond what is evident from a comparison of the language between the two provisions namely (a) extending the prohibition against discrimination to the Union Government and the Parliament and (b) making the provision applicable to the territory of India as defined by the Constitution, has not impressed us. The textual interpretation placed by us upon Articles 301-304 instead gets considerable support from the contextual and the historical perspective of Part XIII.79. We may now turn to yet another contextual feature that has a bearing on the true and correct interpretation of Part XIII namely the sovereign character of the power to tax available to the State legislature. It is now fairly well settled that the Constitutionally vested power to levy tax can be regulated or controlled only by specific Constitutional limitations, if any. We have in the earlier part of this judgment elaborated how the power to levy taxes is a sovereign power with several limitations specifically stipulated by the Constitution itself. We have also explained at some length how legislative competence of the State legislatures can be circumscribed only by express provisions of the Constitution and unless there is an express limitation on the plenary taxing power of the States, there is no other fetter on the exercise of that power.80. Applying the above principle to the case at hand, we do not see any specific limitation on the States power to levy taxes on the import of goods from other States except the one referred to in Article 304(a) of the Constitution. That limitation we have sufficiently explained is confined to levy of discriminatory taxes within the comprehension of Article 304(a). So long as taxes are non-discriminatory and, therefore, consistent with Article 304(a), there is no limitation leave alone any express limitation on the States legislative power to levy any tax on the import of goods from another State. The power to levy a tax in terms of Articles 245 and 246 read with Entry 52 of list II not being in dispute in the cases at hand, the absence of any specific limitation forbidding the exercise of such power whether for the sake of free trade, commerce and intercourse or otherwise simply means that the State legislatures are free to levy taxes that are non-discriminatory in nature.81. That brings us to the third contextual feature relevant to the interpretation of Part XIII. We have in the earlier part of this judgment referred to the decisions of this Court in Kuldip Nayyars case and S.R. Bommais case apart from the decisions of this Court in Special Reference No. 1 of 1964 (supra) to hold that the Indian Constitution if not federal in the strict sense of the term is at least quasi federal in character. That proposition has not been disputed even by the counsel for the assesses/dealers, and must be held to be fairly well settled. Equally well settled is the proposition that Indias federal structure is one of the basic features of the Constitution.In ITC Limited v. Agricultural Produce Market Committee and Ors.(2002) 9 SCC 232 this Court ruled that the Constitution of India must be interpreted in a manner that does not whittle down the powers of the State legislature. An interpretation that supports and promotes federalism while upholding the Central supremacy as contemplated by some of the Articles must be preferred. To the same effect is the nine judge Bench decision of this Court in S.R. Bommais case (supra) where this Court cautioned against adoption of an interpretation that has the effect of whittling down the powers reserved to the States. This Court said:276. The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-a-vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the Courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States.It is a matter of common knowledge that over the last several decades, the trend the world over is towards strengthening of Central Governments be it the result of advances in technological/scientific fields or otherwise, and that even in USA the Centre has become far more powerful notwithstanding the obvious bias in that Constitution in favour of the States. All this must put the court on guard against any conscious whittling down of the powers of the States. Let it be said that the federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle-the outcome of our own historical process and a recognition of the ground realities. This aspect has been dealt with elaborately by Shri M.C. Setalvad in his Tagore Law Lectures Union and State relations under the Indian Constitution (Eastern Law House, Calcutta, 1974). The nature of the Indian federation with reference to its historical background, the distribution of legislative powers, financial and administrative relations, powers of taxation, provisions relating to trade, commerce and industry, have all been dealt with analytically. It is not possible nor is it necessary for the present purposes to refer to them. It is enough to note that our Constitution has certainly a bias towards Centre vis-a-vis the States: Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan. It is equally necessary to emphasise that courts should be careful not to upset the delicately-crafted constitutional scheme by a process of interpretation82. Reference may also be made to Kesavananda Bharatis case (supra) where a Bench of thirteen Judges cautioned that the process of interpretation should not diminish or whittle down the provisions of the original contract upon which the federation was founded nor is it legitimate to impose by a process of judicial construction a new contract upon the federating states. To the same effect is the decision of this Court in M/s. International Tourist Corporation and Ors. v. State of Haryana and Ors. (1981) 2 SCC 318 where this Court observed:6A. There is a patent fallacy in the submission of Shri Sorabji. Before exclusive legislative competence can be claimed for Parliament by resort to the residuary power, the legislative incompetence of the State legislature must be clearly established. Entry 97 itself is specific that a matter can be brought under that entry only if it is not enumerated in List II or List III and in the case of a tax if it is not mentioned in either of those lists. In a Federal Constitution like ours where there is a division of legislative subjects but the residuary power is vested in Parliament, such residuary power cannot be so expansively interpreted, as to whittle down the power of the State legislature. That might affect and jeopardize the very federal principle. The federal nature of the Constitution demands that an interpretation which would allow the exercise of legislative power by Parliament pursuant to the residuary powers vested in it to trench upon State legislation and which would thereby destroy or belittle state autonomy must be rejected.(Emphasis supplied)83. An approach which tends to dilute the federal character of our Constitutional scheme must, therefore, be avoided and one that supports and promotes the concept of federalism preferred by the courts while interpreting the provisions of the Constitution.84. Dealing in particular with the scope and meaning of Article 304(b) of the Constitution on a true and correct interpretation Seervai in his treatise Constitutional Law of India (supra) sounded a note of caution and observed that if Article 304(b) was interpreted in a manner that would include levy of taxes as a restriction within the meaning of that Article, it would totally dislocate the scheme under our Constitution.The celebrated author, in our opinion, was right in saying so for the taxing power of the Union and the States are mutually exclusive. While the Parliament cannot legislate on the subjects reserved for the States, the States cannot similarly trespass onto the taxing powers of the Union. If the Constitutional scheme does not allow the Parliament to usurp the taxing powers of the State Legislatures, such process of usurpation cannot also be permitted to take place in the garb of making Union executives concurrence an essential pre-requisite for any taxing legislation.86. Suffice it to say that the interpretation of any provision of the Constitution will be true and perfect only when the Court looks at the Constitution holistically and keeps in view all important and significant features of the Constitutional scheme constantly reminding itself of the need for a harmonious construction lest interpretation placed on a given provision has the effect of diluting or whittling down the effect or the importance of any other provision or feature of the Constitution. So interpreted Article 301 appearing in Part XIII does not, in our opinion, work as an impediment on the States taxing powers except in situations where such taxes fall foul of Article 304(a) of the Constitution. The contextual approach thus fully matches the textual interpretation which we have placed on Part XIII.91. Suffice it to say that the use of the non-obstante Clause in Article 304 has had its share of criticism from the very inception which criticism has to an extent been prophetic for the interpretation of Part XIII has indeed been a lawyers paradise over the past fifty years or so. Seervai has in his treatise adverted to this anomaly arising from the use of the non-obstante Clause and said that the same covers both the Clauses (a) and (b) of Article 304. He argues with considerable forensic force that reference to Article 301 in the non-obstante Clause is meaningless having regard to the fact that the freedom granted thereunder is itself subject to other provisions of Part XIII including Article 304. This would necessarily imply that Article 304(a) and (b) do not subtract anything from Article 301. That appears to us to be the correct view on the subject. While it is true that legislature does not waste words and that no part of a legislation can be rendered a surplusage, the only rational meaning that can be attributed to the non-obstante Clause appearing in Article 304 is that the same was used only as a manner of abundant caution and a possible reassurance that Article 301 is indeed subordinate to Article 304 which it was even otherwise without the use of that clause. The net effect of the discussion therefore is that the expression subject to other provisions of this Part appearing in Article 301 and the non-obstante Clause appearing in Article 304 do not traverse in different directions. There is no conflict in the two provisions on account of the use of the said expressions. Interpreted individually or conjointly, the said two expressions simply mean that Article 304 takes precedence over Article 301. While Article 304(a) recognizes the power of the State Legislatures to tax goods imported from other State, it also imposes limitations on the exercise of that power. On the other hand Clause (b) to Article 304 permits imposition of reasonable restrictions subject to the proviso appearing below that clause. We have thus no hesitation in rejecting the argument that the use of the non-obstante Clause in Article 304 is suggestive of the Constitution recognizing taxes as restrictions Under Article 301 or that the power to impose a reasonable restriction Under Article 304(b) is meant to include the power to levy taxes so that levy of taxes may be permissible only in case the procedure provided under the proviso is followed.95. To the same effect is the decision in Laxmanappa Hanumantappa Jamkhandi v. Union of India AIR 1955 SC 3 . Reference may also be made to Smt. Ujjam Bai v. State of Uttar Pradesh AIR 1962 SC 1621 which took note of the pronouncements of this Court in the three cases mentioned above to examine whether there was any conflict between the view taken in Moopil Nair case on the one hand and Ramjilal and Laxmanappa cases on the other, the Court found on a closer examination that there was no such conflict and clarified that the observation made in Ramjilal and Laxmanappa cases must in the context bear reference to abrogation of Article 31(1) only in so far as the admissibility of a challenge to taxation law with reference to Part III is concerned. The Court explained that in Moopil Nairs case this Court has held that a taxing statute was not immune from challenge Under Article 14 just because the legislature that imposed the tax was competent to levy the tax in terms of Article 265. This Court summed up the legal position in the following words:The result of the authorities may thus be summed up:(1) A tax will be valid only if it is authorized by a law enacted by a competent legislature. That is Article 265.(2) A law which is authorized as aforesaid must further be not repugnant to any of the provisions of the Constitution. Thus, a law which contravenes Articles 14 will be bad, Moopil Nairs case.(3) A law which is made by a competent legislature and which is not otherwise invalid, is not open to attack Under Article 31(1). Ramjilals case and Laxmanappas case.(4) A law which is ultra vires either because the legislature has no competence over it or it contravenes, some constitutional inhibition, has no legal existence, and any action taken thereunder will be an infringement of Article 19(1)(g) Himmatlals case and Laxmanappas case. The result will be the same when the law is a colourable piece of legislation.(5) Where assessment proceedings are taken without the authority of law, or where the proceedings are repugnant to Rules of natural justice, there is an infringement of the right guaranteed Under Article 19(1)(f) and Article 19(1)(g); Tata IronSteel Co. Ltd.; Moopil Nairs case and Shri Madan Lal Aroras case.96. The above statement of law in our view is legally unexceptionable. The argument that Ramjilal and Laxmanappas cases place taxing statute beyond the purview of challenge under Part III has been correctly repelled and fiscal statutes are also held to be open to challenge on the touchstone of Article 14 of the Constitution. The contention that an aggrieved citizen may have no remedy against a taxing statute does not, therefore, hold good. Whether or not a challenge to such a statute succeeds is, however, a different matter. It is fairly well settled by now that Courts show considerable deference to the legislature in the matter of quantum of tax that may be levied as also the subjects and individuals upon whom the same may be levied. Just because room for challenge to a fiscal statute is limited is in our view no reason to hold that levy of taxes otherwise within the competence of the legislature imposing the same should be seen as a restriction on free trade and commerce guaranteed Under Article 301 which Article does not either textually or contextually recognize levy of taxes as impediments except in cases where the same are discriminatory in nature thereby being offensive to Article 304(a) of the Constitution.97. On behalf of the States it was argued by the learned Attorney General, and M/s. Rao and Dwivedi that the decisions of this Court in Atiabari and Automobile Transport cases had drawn support for their conclusion on the Australian and American decisions. It was urged that although the view taken by the majority decision in the former had recognized that decisions from other jurisdictions may not be helpful while interpreting the provisions of our Constitution, yet the Court had referred to and relied upon those decisions to buttress its conclusions. The Australian decisions relied upon by the majority have, it was contended, been reversed by subsequent pronouncements of the Australian High Court, which pronouncements are now gravitating towards the theory that discriminatory taxes alone will operate as restrictions against free trade, commerce and intercourse. It was in that view argued that the theoretical basis borrowed from the foreign judgments by this Court in Atiabari case stood demolished or atleast substantially eroded by the subsequent pronouncements of the Australian High Courts, thereby, rendering the correctness of the view taken by the majority in Atiabaris case open to serious doubts.98. There is, in our view, considerable merit in that submission.In Atiabaris case (supra), Gajendragadkar J., speaking for the majority while referring to the American and Australian decisions observed:59.... ... ... We have deliberately not referred to these decisions earlier because we thought it would be unreasonable to refer to or rely on the said Section or the decisions thereon for the purpose of construing the relevant Articles of Part XIII of our Constitution. It is commonplace to say that the political and historical background of the federal policy adopted by the Australian Commonwealth, the setting of the Constitution itself, the distribution of powers and the general scheme of the Constitution are different, and so it would not be safe to seek for guidance or assistance from the Australian decisions when we are called upon to construe the provisions of our Constitution. In this connection we have already referred to the note of warning struck by Venkatarama Aiyar, J., against indiscriminate reliance being placed on Australian and American decisions in interpreting our Constitution in the case of M.P.V. SundararamierCo. The same caution was expressed by Gwyer, C.J., as early as 1939 when he observed in The Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938. In the matter of AIR 1939 F.C. 1 at P. 5; there are few subjects on which the decisions of other Courts require to be treated with greater caution than that of federal and provincial powers, for in the last analysis the decision must depend upon the words of the Constitution which the Court is interpreting; and since no two Constitutions are in identical terms it is extremely unsafe to assume that a decision on one of them can be applied without qualification to another. This may be so even where the words or expressions used are the same in both cases, for a word or a phrase may take a colour from its context and bear different senses accordingly.(Emphasis supplied)99. Having said that Gajendragadkar J., referred to these decisions with a view to supporting his conclusions by reference to Judges in other jurisdiction responding to similar challenges posed by interpretation of what His Lordship described as sister constitutions. He said:59. ... ... ...When you are dealing with the problem of construing a constitutional provision which is none-too-clear or lucid you feel inclined to inquire how other judicial minds have responded to the challenge presented by similar provisions in other sister Constitutions. It is in that spirit that we propose to refer to two Privy Council decisions which dealt with the construction of Section 92 of the Australian Constitution.100. The Court, then, relied upon the decisions of the Australian High Court in James v. Commonwealth of Australia (1936) A.C. 578 and Commonwealth of Australia and Ors. v. Bank of New South Wales and Ors. [1950] A.C. 235 to hold that the test of direct and immediate effect evolved by the Australian High Court pronouncements, while interpreting Section 92 of the Australian Constitution, was the correct test applicable even to our Constitution including interpretation of Article 301 thereof.The Court said:Commonwealth of Australia v. Bank of New South Wales | 1 | 51,746 | 9,892 | ### Instruction:
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expressed regarding high rates of taxation, it would be apposite to rely on the observations of Marshall, CJ, in McCulloch v. Maryland 17 US 316 (1819), that the only security against the abuse of such power lies in the structure of the government itself. Article 304(a) 147. In regard to the question whether the levy of entry tax on import of goods from outside the local area in the State will be per se discriminatory if goods similar to those imported are not produced or manufactured within the State, I find it difficult to agree with the conclusion that a tax on goods imported into a State can be levied even if similar goods are not manufactured or produced in the importing State. I would agree with the conclusion drawn by Ashok Bhushan, J., in this regard. Article 304 reads as follows: Restrictions on trade, commerce and intercourse among States.-Notwithstanding anything in Article 301 or Article 303, the Legislature of a State may by law- (a) impose on goods imported from other States [or the Union territories] any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced; and (b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest: Provided that no Bill or amendment for the purposes of Clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President. 148. The non-discriminatory principle is embedded in two provisions of Part XIII: Article 303(1)-Parliament cannot impose restrictions Under Article 302 and make a discriminatory law under any entry relating to trade and commerce; the other is Article 304(a) which (unlike Section 297 of the erstwhile Government of India Act, 1935 which prohibited-through a negative mandate, discriminatory treatment) empowers State Legislatures to impose non-discriminatory taxes on goods. Thus, Article 304(a) differentiates between discriminatory and non-discriminatory taxes. The premise underlying this provision is the paramount aim of Part XIII to establish and foster economic unity of the country. Non-discrimination, or parity of treatment is therefore at the core of its purpose, which Shri T.T. Krishnamachari stressed, in his speech in the Constituent Assembly. He said that restrictions by the State have to be prevented so that the particular idiosyncrasy of some people in power or narrow provincial policies of certain States should not be allowed to come into play and affect the general economy of the country. [Constituent Assembly Debates, 1139 (1949)]. 149. The Article, therefore, recognizes the power of a Legislature to a State to impose the tax on the imported goods so, however, as not to discriminate between goods so imported and goods so manufactured or produced. While there is no doubt that this Article recognizes the power to legislate on a State, it equally qualifies that power with the condition that such a law must comply with. That condition is that the law which imposes a tax on imported goods cannot discriminate between goods so imported and the goods so manufactured or produced. It also postulates that the tax on import is a tax to which similar goods manufactured or produced in that State are subject. The Article thus imposes two conditions: firstly, that a law may impose a tax on goods imported from other States, any tax to which similar goods manufactured or produced in that State are subject. This clearly implies that the goods imported from other States may be subjected to a tax where similar goods are in fact, manufactured or produced in the importing State and are subjected to tax. In other words, (a) the goods imported from other States must be similar to (b) the goods manufactured or produced in the importing State and (c) the goods so locally manufactured or produced must be subject to tax. The second condition is the tax that is imposed on imported goods should not discriminate between the imported goods and goods manufactured or produced in the importing State. 150. The intention of the Article thus, clearly is that where a tax exists on goods imported into a State there should be no discrimination between such a tax and a tax on similar goods manufactured or produced in the importing State. The reference point for tax on imported goods is the tax on locally manufactured goods. It is not possible to construe the prohibition against discrimination where there is no tax upon similar goods manufactured or produced in the importing State. Undoubtedly, the effect of such a construction is that the imported goods cannot be taxed where similar goods are not manufactured or produced in the importing State and are therefore, not subjected to similar tax and that seems to be the clear intention of this Article. 151. In the normal course, a State in which certain goods are not manufactured would rely on the supply of such goods from other States and the effect of this provision would be to make the goods so imported available without the additional burden of tax. In sum, the premise on which tax can be imposed is the existence of not mere taxes on goods produced or manufactured locally, or the theoretical possibility of taxation, to avoid the prohibition Under Article 304(a), but the actual production or manufacture of similar goods, that are subject to like or similar tax. Absent this condition, the levy would fall foul of Article 304(a) since it would constitute an additional burden (the goods already having suffered some form of taxation in the producing state). This interpretation, in my opinion would also further economic progress and the unhindered availability of goods in states which do not have manufacturing capacities and may not be able to develop it, having regard to lack of natural resources or other geographical limitations. It also furthers the aims underlying Article 301 of the Constitution of India. Conclusion
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and any action taken thereunder will be an infringement of Article 19(1)(g) Himmatlals case and Laxmanappas case. The result will be the same when the law is a colourable piece of legislation.(5) Where assessment proceedings are taken without the authority of law, or where the proceedings are repugnant to Rules of natural justice, there is an infringement of the right guaranteed Under Article 19(1)(f) and Article 19(1)(g); Tata IronSteel Co. Ltd.; Moopil Nairs case and Shri Madan Lal Aroras case.96. The above statement of law in our view is legally unexceptionable. The argument that Ramjilal and Laxmanappas cases place taxing statute beyond the purview of challenge under Part III has been correctly repelled and fiscal statutes are also held to be open to challenge on the touchstone of Article 14 of the Constitution. The contention that an aggrieved citizen may have no remedy against a taxing statute does not, therefore, hold good. Whether or not a challenge to such a statute succeeds is, however, a different matter. It is fairly well settled by now that Courts show considerable deference to the legislature in the matter of quantum of tax that may be levied as also the subjects and individuals upon whom the same may be levied. Just because room for challenge to a fiscal statute is limited is in our view no reason to hold that levy of taxes otherwise within the competence of the legislature imposing the same should be seen as a restriction on free trade and commerce guaranteed Under Article 301 which Article does not either textually or contextually recognize levy of taxes as impediments except in cases where the same are discriminatory in nature thereby being offensive to Article 304(a) of the Constitution.97. On behalf of the States it was argued by the learned Attorney General, and M/s. Rao and Dwivedi that the decisions of this Court in Atiabari and Automobile Transport cases had drawn support for their conclusion on the Australian and American decisions. It was urged that although the view taken by the majority decision in the former had recognized that decisions from other jurisdictions may not be helpful while interpreting the provisions of our Constitution, yet the Court had referred to and relied upon those decisions to buttress its conclusions. The Australian decisions relied upon by the majority have, it was contended, been reversed by subsequent pronouncements of the Australian High Court, which pronouncements are now gravitating towards the theory that discriminatory taxes alone will operate as restrictions against free trade, commerce and intercourse. It was in that view argued that the theoretical basis borrowed from the foreign judgments by this Court in Atiabari case stood demolished or atleast substantially eroded by the subsequent pronouncements of the Australian High Courts, thereby, rendering the correctness of the view taken by the majority in Atiabaris case open to serious doubts.98. There is, in our view, considerable merit in that submission.In Atiabaris case (supra), Gajendragadkar J., speaking for the majority while referring to the American and Australian decisions observed:59.... ... ... We have deliberately not referred to these decisions earlier because we thought it would be unreasonable to refer to or rely on the said Section or the decisions thereon for the purpose of construing the relevant Articles of Part XIII of our Constitution. It is commonplace to say that the political and historical background of the federal policy adopted by the Australian Commonwealth, the setting of the Constitution itself, the distribution of powers and the general scheme of the Constitution are different, and so it would not be safe to seek for guidance or assistance from the Australian decisions when we are called upon to construe the provisions of our Constitution. In this connection we have already referred to the note of warning struck by Venkatarama Aiyar, J., against indiscriminate reliance being placed on Australian and American decisions in interpreting our Constitution in the case of M.P.V. SundararamierCo. The same caution was expressed by Gwyer, C.J., as early as 1939 when he observed in The Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938. In the matter of AIR 1939 F.C. 1 at P. 5; there are few subjects on which the decisions of other Courts require to be treated with greater caution than that of federal and provincial powers, for in the last analysis the decision must depend upon the words of the Constitution which the Court is interpreting; and since no two Constitutions are in identical terms it is extremely unsafe to assume that a decision on one of them can be applied without qualification to another. This may be so even where the words or expressions used are the same in both cases, for a word or a phrase may take a colour from its context and bear different senses accordingly.(Emphasis supplied)99. Having said that Gajendragadkar J., referred to these decisions with a view to supporting his conclusions by reference to Judges in other jurisdiction responding to similar challenges posed by interpretation of what His Lordship described as sister constitutions. He said:59. ... ... ...When you are dealing with the problem of construing a constitutional provision which is none-too-clear or lucid you feel inclined to inquire how other judicial minds have responded to the challenge presented by similar provisions in other sister Constitutions. It is in that spirit that we propose to refer to two Privy Council decisions which dealt with the construction of Section 92 of the Australian Constitution.100. The Court, then, relied upon the decisions of the Australian High Court in James v. Commonwealth of Australia (1936) A.C. 578 and Commonwealth of Australia and Ors. v. Bank of New South Wales and Ors. [1950] A.C. 235 to hold that the test of direct and immediate effect evolved by the Australian High Court pronouncements, while interpreting Section 92 of the Australian Constitution, was the correct test applicable even to our Constitution including interpretation of Article 301 thereof.The Court said:Commonwealth of Australia v. Bank of New South Wales
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COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, AMRITSAR (PUNJAB) Vs. M/S D.L. STEELS ETC | seeds specified therein, which include seeds of fruit trees, are to be regarded as seeds of a kind use of sowing. Chapter Note 3, therefore, creates a fiction when it stipulates that for the purpose of Heading 12.09, seeds of fruit trees would be considered seeds of a kind used for sowing. The Note, however, expressly excludes the goods specified in clauses (a) to (d), even when they are for the purpose of sowing. Clause (b) excludes spices and other products of Chapter 9 from the purview of Heading 12.09. Further, the Explanatory Notes to sub-heading 1209.99, also explicitly exclude fruits of Chapter 8, which Chapter subject to the exclusions and the principles of interpretation that apply to resolve conflict of classification of entries, applies to edible fruits and not inedible fruits. 22. We will now examine the Explanatory Notes to Heading 12.09. The first paragraph of the Explanatory Notes to Heading 12.09 states that the Heading covers all seeds, fruits and spores of a kind used for sowing. It includes such products even if they are no longer capable of germination. This statement has to be read in conjunction with Chapter Note 3, which states that for the purpose of Heading 12.09, seeds of fruit trees are to be regarded as seeds of a kind used for sowing. However, the paragraph does not apply to the products which are mentioned at the end of the Explanatory Note even when the seeds mentioned therein are used for sowing as they were classified elsewhere in the nomenclature. The exclusion vide clauses (a) to (h) confirms and validates the first paragraph of the Explanatory Notes to the Heading 12.09. The second paragraph of the Explanatory Notes, in addition to the seeds already excluded by Chapter Note 3, also excludes the seeds and fruits which are primarily used in perfumery, pharmacy or for insecticidal, fungicidal or similar purposes, as they are covered under Heading 12.11. This is reiterated by clause (g) of the Explanatory Note which states that seeds and fruits, which are themselves of a kind primarily used in perfumery, pharmacy or for insecticidal, fungicidal or similar purposes would be covered under the Heading 12.11. 23. Heading 12.11 states that the plants and parts of plants including seeds and fruits, of the kind used primarily in perfumery, pharmacy or for insecticidal, fungicidal or similar purposes, fresh or dried, whether or not cut, crushed or powdered would be covered by the said Heading. We need not refer to this Heading in detail, except noticing the details of the products included in the said heading, which include seeds as in the case of Ambrette, Angelica, Burdock, etc., among others. After enumerating the list, the Explanatory Notes state that the list is not exhausted and is given to assist in the identification of the plants. Mention of botanical names of a particular species does not necessarily indicate that other species of the same plant family are not classified in the Heading. It is further stated that products of this Heading which are regarded as narcotic drugs under international instruments, are indicated in the list at end of Chapter 29. 24. The word seed in common parlance and in commercial sense means the grains or ripened ovules of plants used for sowing. The normal function of a seed is to germinate and produce a new plant. Broadly, a seed includes a propagative structure such as a spore, or a small dry fruit. Some fruit and vegetable seeds are edible and are used by human beings as food or even as condiments. However, as explained above, as per the Chapter Note 3 seeds of forest trees, seeds of fruit trees…….are to be regarded as seeds of a kind used for sowing. 25. In the context of the present case, once we accept the finding of fact recorded by the CESTAT that anardana is a dried product of local daru or wild pomegranate, which grows in mid hill conditions and which fruit in its fresh form is different from the pomegranate included in clause 7 to Heading 08.10, as this wild pomegranate is not consumed as a fresh fruit, the contention of the Revenue must fail. GRI 3, which in the absence of the Heading, Section or Chapter Notes, prescribes the order of priority as - (a) specific description,(b) essential character, and (c) the Heading that occurs last in numerical order, and even GRI 4 – the heading appropriate for the goods to which they are most akin, supports our conclusion and finding. The submission of the learned counsel for the Respondent is correct that when the Revenue challenges the classification made by the assessees, the onus is on the Revenue to establish that the item in question falls in taxing category as claimed by them [See HPL Chemicals Ltd. v. Commissioner of Central Excise, Chandigarh (2006) 5 SCC 208, Parle Agro Pvt. Ltd. v. Commissioner of Commercial Taxes, Trivandrum (2017) 7 SCC 540, Union of India & Ors. v. Garware Nylons Ltd. & Ors. (1996) 10 SCC 413] . The burden is on the Revenue to adduce proper evidence to show that the goods are classifiable under a different heading than that claimed by the assessee. The finding of fact as recorded by CESTAT gets reinforced by the policy condition attached to the sub-heading 1209.99.00 of the Import Policy which specifically states - import of pomegranate seeds will be free. Without any doubt, sub-heading 1209.99.00 in the Import Policy correlates to sub-heading 1209.99 to Chapter 12 of the HSN. The contention of the Revenue that the Import Policy is in the nature of delegated legislation albeit correct, would not make any difference in the context of the present case as the policy condition in the Export/Import Policy specifically includes pomegranate seeds – as anardana under sub-heading 1209.99.00, whereas the Schedule to the Customs Tariff Act, 1975 merely reproduces the Heading and the sub-heading of the HSN, without specifically including or excluding pomegranate seeds under the sub-heading 1209.99. | 0[ds]12. We would, at this stage, take on record the well-settled principle that words in a taxing statute must be construed in consonance with their commonly accepted meaning in the trade and their popular meaning (See Dunlop India Ltd. v. Union of Indian and Ors. (1976) 2 SCC 241, and Commissioner of Central Excise, New Delhi v. Connaught Plaza Restaurant Private Ltd., New Delhi (2012) 13 SCC 639) . When a word is not explicitly defined, or there is ambiguity as to its meaning, it must be interpreted for the purpose of classification in the popular sense, which is the sense attributed to it by those people who are conversant with the subject matter that the statute is dealing with. This principle should commend to the authorities as it is a good fiscal policy not to put people in doubt or quandary about their tax liability. The common parlance test is an extension of the general principle of interpretation of statutes for deciphering the mind of the law-maker. However, the above rule is subject to certain exceptions, for example, when there is an artificial definition or special meaning attached to the word in a statute, then the ordinary sense approach would not be applicable Collector of Central Excise, Kanpur v. Krishna Carbon Paper Company, (1989) 1 SCC 150 .18. In favour of the appellants claim, it must be highlighted that pomegranates, along with some other fruits, are expressly included in clause 7 to the Explanatory Notes to sub-heading 0810.90. Consequently, it can be argued with some merit that dried pomegranate, if prepared by drying in the Sun or by industrial processes, would fall under sub-heading 0813.40.19. However, pomegranates are rather unusual fruits and their structure is unlike other fruits. The outer most layer is a hard and inedible shell. The edible part consists of the seeds and arils. Arils are the sweet, juicy, and crunchy covering that encase the seeds. However, the finding of the CESTAT is that wild pomegranates from which anardana is made are different from the pomegranate fruit. This finding of fact is supported by considerable literature which states that anardana is prepared by dehydrating the arils of wild pomegranates, and not from the pomegranate which is eaten as a fresh fruit (Refer to: J. S. Pruthi and A. K. Saxena......curing a number of ailments) The conventional utilization of the wild pomegranate fruit lies in drying the seeds along with pulp to make anardana. The wild pomegranate fruit is widely found on the hilly slopes of the Himalayas. It contains high acid content along with other quality characteristics, which distinguishes it from the pomegranate fruit which is consumed as a fresh fruit. The dried wild pomegranate arils have a distinct tart and sour flavour, owing to the high acid content, which gives it the commercial value. Anardana, therefore, can be defined as Sun-dried seeds of ripe sour pomegranate, and is predominantly used as an acidulant in Indian and Persian cuisines, and for its health benefits in the Ayurvedic system of medicine.21. We will now proceed to examine Heading 12.09, and in particular, sub-heading 1209.99, along with the applicable Notes. Chapter Note 3 of Chapter 12 states that for the purpose of Heading 12.09, the seeds specified therein, which include seeds of fruit trees, are to be regarded as seeds of a kind use of sowing. Chapter Note 3, therefore, creates a fiction when it stipulates that for the purpose of Heading 12.09, seeds of fruit trees would be considered seeds of a kind used for sowing. The Note, however, expressly excludes the goods specified in clauses (a) to (d), even when they are for the purpose of sowing. Clause (b) excludes spices and other products of Chapter 9 from the purview of Heading 12.09. Further, the Explanatory Notes to sub-heading 1209.99, also explicitly exclude fruits of Chapter 8, which Chapter subject to the exclusions and the principles of interpretation that apply to resolve conflict of classification of entries, applies to edible fruits and not inedible fruits.22. We will now examine the Explanatory Notes to Heading 12.09. The first paragraph of the Explanatory Notes to Heading 12.09 states that the Heading covers all seeds, fruits and spores of a kind used for sowing. It includes such products even if they are no longer capable of germination. This statement has to be read in conjunction with Chapter Note 3, which states that for the purpose of Heading 12.09, seeds of fruit trees are to be regarded as seeds of a kind used for sowing. However, the paragraph does not apply to the products which are mentioned at the end of the Explanatory Note even when the seeds mentioned therein are used for sowing as they were classified elsewhere in the nomenclature. The exclusion vide clauses (a) to (h) confirms and validates the first paragraph of the Explanatory Notes to the Heading 12.09. The second paragraph of the Explanatory Notes, in addition to the seeds already excluded by Chapter Note 3, also excludes the seeds and fruits which are primarily used in perfumery, pharmacy or for insecticidal, fungicidal or similar purposes, as they are covered under Heading 12.11. This is reiterated by clause (g) of the Explanatory Note which states that seeds and fruits, which are themselves of a kind primarily used in perfumery, pharmacy or for insecticidal, fungicidal or similar purposes would be covered under the Heading 12.11.23. Heading 12.11 states that the plants and parts of plants including seeds and fruits, of the kind used primarily in perfumery, pharmacy or for insecticidal, fungicidal or similar purposes, fresh or dried, whether or not cut, crushed or powdered would be covered by the said Heading. We need not refer to this Heading in detail, except noticing the details of the products included in the said heading, which include seeds as in the case of Ambrette, Angelica, Burdock, etc., among others. After enumerating the list, the Explanatory Notes state that the list is not exhausted and is given to assist in the identification of the plants. Mention of botanical names of a particular species does not necessarily indicate that other species of the same plant family are not classified in the Heading. It is further stated that products of this Heading which are regarded as narcotic drugs under international instruments, are indicated in the list at end of Chapter 29.25. In the context of the present case, once we accept the finding of fact recorded by the CESTAT that anardana is a dried product of local daru or wild pomegranate, which grows in mid hill conditions and which fruit in its fresh form is different from the pomegranate included in clause 7 to Heading 08.10, as this wild pomegranate is not consumed as a fresh fruit, the contention of the Revenue must fail. GRI 3, which in the absence of the Heading, Section or Chapter Notes, prescribes the order of priority as - (a) specific description,(b) essential character, and (c) the Heading that occurs last in numerical order, and even GRI 4 – the heading appropriate for the goods to which they are most akin, supports our conclusion and finding. The submission of the learned counsel for the Respondent is correct that when the Revenue challenges the classification made by the assessees, the onus is on the Revenue to establish that the item in question falls in taxing category as claimed by them [See HPL Chemicals Ltd. v. Commissioner of Central Excise, Chandigarh (2006) 5 SCC 208, Parle Agro Pvt. Ltd. v. Commissioner of Commercial Taxes, Trivandrum (2017) 7 SCC 540, Union of India & Ors. v. Garware Nylons Ltd. & Ors. (1996) 10 SCC 413] . The burden is on the Revenue to adduce proper evidence to show that the goods are classifiable under a different heading than that claimed by the assessee. The finding of fact as recorded by CESTAT gets reinforced by the policy condition attached to the sub-heading 1209.99.00 of the Import Policy which specifically states - import of pomegranate seeds will be free. Without any doubt, sub-heading 1209.99.00 in the Import Policy correlates to sub-heading 1209.99 to Chapter 12 of the HSN. The contention of the Revenue that the Import Policy is in the nature of delegated legislation albeit correct, would not make any difference in the context of the present case as the policy condition in the Export/Import Policy specifically includes pomegranate seeds – as anardana under sub-heading 1209.99.00, whereas the Schedule to the Customs Tariff Act, 1975 merely reproduces the Heading and the sub-heading of the HSN, without specifically including or excluding pomegranate seeds under the sub-heading 1209.99. | 0 | 6,189 | 1,619 | ### 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:
seeds specified therein, which include seeds of fruit trees, are to be regarded as seeds of a kind use of sowing. Chapter Note 3, therefore, creates a fiction when it stipulates that for the purpose of Heading 12.09, seeds of fruit trees would be considered seeds of a kind used for sowing. The Note, however, expressly excludes the goods specified in clauses (a) to (d), even when they are for the purpose of sowing. Clause (b) excludes spices and other products of Chapter 9 from the purview of Heading 12.09. Further, the Explanatory Notes to sub-heading 1209.99, also explicitly exclude fruits of Chapter 8, which Chapter subject to the exclusions and the principles of interpretation that apply to resolve conflict of classification of entries, applies to edible fruits and not inedible fruits. 22. We will now examine the Explanatory Notes to Heading 12.09. The first paragraph of the Explanatory Notes to Heading 12.09 states that the Heading covers all seeds, fruits and spores of a kind used for sowing. It includes such products even if they are no longer capable of germination. This statement has to be read in conjunction with Chapter Note 3, which states that for the purpose of Heading 12.09, seeds of fruit trees are to be regarded as seeds of a kind used for sowing. However, the paragraph does not apply to the products which are mentioned at the end of the Explanatory Note even when the seeds mentioned therein are used for sowing as they were classified elsewhere in the nomenclature. The exclusion vide clauses (a) to (h) confirms and validates the first paragraph of the Explanatory Notes to the Heading 12.09. The second paragraph of the Explanatory Notes, in addition to the seeds already excluded by Chapter Note 3, also excludes the seeds and fruits which are primarily used in perfumery, pharmacy or for insecticidal, fungicidal or similar purposes, as they are covered under Heading 12.11. This is reiterated by clause (g) of the Explanatory Note which states that seeds and fruits, which are themselves of a kind primarily used in perfumery, pharmacy or for insecticidal, fungicidal or similar purposes would be covered under the Heading 12.11. 23. Heading 12.11 states that the plants and parts of plants including seeds and fruits, of the kind used primarily in perfumery, pharmacy or for insecticidal, fungicidal or similar purposes, fresh or dried, whether or not cut, crushed or powdered would be covered by the said Heading. We need not refer to this Heading in detail, except noticing the details of the products included in the said heading, which include seeds as in the case of Ambrette, Angelica, Burdock, etc., among others. After enumerating the list, the Explanatory Notes state that the list is not exhausted and is given to assist in the identification of the plants. Mention of botanical names of a particular species does not necessarily indicate that other species of the same plant family are not classified in the Heading. It is further stated that products of this Heading which are regarded as narcotic drugs under international instruments, are indicated in the list at end of Chapter 29. 24. The word seed in common parlance and in commercial sense means the grains or ripened ovules of plants used for sowing. The normal function of a seed is to germinate and produce a new plant. Broadly, a seed includes a propagative structure such as a spore, or a small dry fruit. Some fruit and vegetable seeds are edible and are used by human beings as food or even as condiments. However, as explained above, as per the Chapter Note 3 seeds of forest trees, seeds of fruit trees…….are to be regarded as seeds of a kind used for sowing. 25. In the context of the present case, once we accept the finding of fact recorded by the CESTAT that anardana is a dried product of local daru or wild pomegranate, which grows in mid hill conditions and which fruit in its fresh form is different from the pomegranate included in clause 7 to Heading 08.10, as this wild pomegranate is not consumed as a fresh fruit, the contention of the Revenue must fail. GRI 3, which in the absence of the Heading, Section or Chapter Notes, prescribes the order of priority as - (a) specific description,(b) essential character, and (c) the Heading that occurs last in numerical order, and even GRI 4 – the heading appropriate for the goods to which they are most akin, supports our conclusion and finding. The submission of the learned counsel for the Respondent is correct that when the Revenue challenges the classification made by the assessees, the onus is on the Revenue to establish that the item in question falls in taxing category as claimed by them [See HPL Chemicals Ltd. v. Commissioner of Central Excise, Chandigarh (2006) 5 SCC 208, Parle Agro Pvt. Ltd. v. Commissioner of Commercial Taxes, Trivandrum (2017) 7 SCC 540, Union of India & Ors. v. Garware Nylons Ltd. & Ors. (1996) 10 SCC 413] . The burden is on the Revenue to adduce proper evidence to show that the goods are classifiable under a different heading than that claimed by the assessee. The finding of fact as recorded by CESTAT gets reinforced by the policy condition attached to the sub-heading 1209.99.00 of the Import Policy which specifically states - import of pomegranate seeds will be free. Without any doubt, sub-heading 1209.99.00 in the Import Policy correlates to sub-heading 1209.99 to Chapter 12 of the HSN. The contention of the Revenue that the Import Policy is in the nature of delegated legislation albeit correct, would not make any difference in the context of the present case as the policy condition in the Export/Import Policy specifically includes pomegranate seeds – as anardana under sub-heading 1209.99.00, whereas the Schedule to the Customs Tariff Act, 1975 merely reproduces the Heading and the sub-heading of the HSN, without specifically including or excluding pomegranate seeds under the sub-heading 1209.99.
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### Explanation:
pomegranate fruit which is consumed as a fresh fruit. The dried wild pomegranate arils have a distinct tart and sour flavour, owing to the high acid content, which gives it the commercial value. Anardana, therefore, can be defined as Sun-dried seeds of ripe sour pomegranate, and is predominantly used as an acidulant in Indian and Persian cuisines, and for its health benefits in the Ayurvedic system of medicine.21. We will now proceed to examine Heading 12.09, and in particular, sub-heading 1209.99, along with the applicable Notes. Chapter Note 3 of Chapter 12 states that for the purpose of Heading 12.09, the seeds specified therein, which include seeds of fruit trees, are to be regarded as seeds of a kind use of sowing. Chapter Note 3, therefore, creates a fiction when it stipulates that for the purpose of Heading 12.09, seeds of fruit trees would be considered seeds of a kind used for sowing. The Note, however, expressly excludes the goods specified in clauses (a) to (d), even when they are for the purpose of sowing. Clause (b) excludes spices and other products of Chapter 9 from the purview of Heading 12.09. Further, the Explanatory Notes to sub-heading 1209.99, also explicitly exclude fruits of Chapter 8, which Chapter subject to the exclusions and the principles of interpretation that apply to resolve conflict of classification of entries, applies to edible fruits and not inedible fruits.22. We will now examine the Explanatory Notes to Heading 12.09. The first paragraph of the Explanatory Notes to Heading 12.09 states that the Heading covers all seeds, fruits and spores of a kind used for sowing. It includes such products even if they are no longer capable of germination. This statement has to be read in conjunction with Chapter Note 3, which states that for the purpose of Heading 12.09, seeds of fruit trees are to be regarded as seeds of a kind used for sowing. However, the paragraph does not apply to the products which are mentioned at the end of the Explanatory Note even when the seeds mentioned therein are used for sowing as they were classified elsewhere in the nomenclature. The exclusion vide clauses (a) to (h) confirms and validates the first paragraph of the Explanatory Notes to the Heading 12.09. The second paragraph of the Explanatory Notes, in addition to the seeds already excluded by Chapter Note 3, also excludes the seeds and fruits which are primarily used in perfumery, pharmacy or for insecticidal, fungicidal or similar purposes, as they are covered under Heading 12.11. This is reiterated by clause (g) of the Explanatory Note which states that seeds and fruits, which are themselves of a kind primarily used in perfumery, pharmacy or for insecticidal, fungicidal or similar purposes would be covered under the Heading 12.11.23. Heading 12.11 states that the plants and parts of plants including seeds and fruits, of the kind used primarily in perfumery, pharmacy or for insecticidal, fungicidal or similar purposes, fresh or dried, whether or not cut, crushed or powdered would be covered by the said Heading. We need not refer to this Heading in detail, except noticing the details of the products included in the said heading, which include seeds as in the case of Ambrette, Angelica, Burdock, etc., among others. After enumerating the list, the Explanatory Notes state that the list is not exhausted and is given to assist in the identification of the plants. Mention of botanical names of a particular species does not necessarily indicate that other species of the same plant family are not classified in the Heading. It is further stated that products of this Heading which are regarded as narcotic drugs under international instruments, are indicated in the list at end of Chapter 29.25. In the context of the present case, once we accept the finding of fact recorded by the CESTAT that anardana is a dried product of local daru or wild pomegranate, which grows in mid hill conditions and which fruit in its fresh form is different from the pomegranate included in clause 7 to Heading 08.10, as this wild pomegranate is not consumed as a fresh fruit, the contention of the Revenue must fail. GRI 3, which in the absence of the Heading, Section or Chapter Notes, prescribes the order of priority as - (a) specific description,(b) essential character, and (c) the Heading that occurs last in numerical order, and even GRI 4 – the heading appropriate for the goods to which they are most akin, supports our conclusion and finding. The submission of the learned counsel for the Respondent is correct that when the Revenue challenges the classification made by the assessees, the onus is on the Revenue to establish that the item in question falls in taxing category as claimed by them [See HPL Chemicals Ltd. v. Commissioner of Central Excise, Chandigarh (2006) 5 SCC 208, Parle Agro Pvt. Ltd. v. Commissioner of Commercial Taxes, Trivandrum (2017) 7 SCC 540, Union of India & Ors. v. Garware Nylons Ltd. & Ors. (1996) 10 SCC 413] . The burden is on the Revenue to adduce proper evidence to show that the goods are classifiable under a different heading than that claimed by the assessee. The finding of fact as recorded by CESTAT gets reinforced by the policy condition attached to the sub-heading 1209.99.00 of the Import Policy which specifically states - import of pomegranate seeds will be free. Without any doubt, sub-heading 1209.99.00 in the Import Policy correlates to sub-heading 1209.99 to Chapter 12 of the HSN. The contention of the Revenue that the Import Policy is in the nature of delegated legislation albeit correct, would not make any difference in the context of the present case as the policy condition in the Export/Import Policy specifically includes pomegranate seeds – as anardana under sub-heading 1209.99.00, whereas the Schedule to the Customs Tariff Act, 1975 merely reproduces the Heading and the sub-heading of the HSN, without specifically including or excluding pomegranate seeds under the sub-heading 1209.99.
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Gordhandas Purshottamdas Sonawala & Another Vs. Eastern Cotton & Company | the parties would have to pay to or received from one another the differences calculated on the difference between the contract rates and those settlement rates.29. The whole of this discussion, however, is academic by reason of the fact that in practice delivery contracts were not put through any periodical settlements and at all material times the operation of this term in the official contract form had become obsolete. This position was not disputed on behalf of the appellants and their counsel stated before the Court that he did not wish to dispute the fact that delivery contracts were at no time submitted to periodical settlements in the Association. The effect of this procedure being adopted in the Association was tacitly to suspend the operation of these by-laws as to periodical settlements in respect of delivery contracts and it would be superfluous, nay absurd, on the part of the business people entering into contracts subject to the by-laws of the Association to incorporate in the contract form provisions which had become obsolete. If the contracts were not to pass through the periodical settlements in the clearing house no question would ever arise of settlement rates requiring to be fixed, much less of the basis of such settlement rates being determined, or of the difference of Rs.... above or below the settlement rate of hedge contracts being over agreed upon between the parties. If under those circumstances, the parties did not fill in those blanks which required to be filled in the official contract form on the basis of By-laws 139 and 141 being in operation, it could not be said that they had failed to substantially comply with the requirements of the official contract form. The official contract form had to be filled in so far as it was practicable. The operation of these by-laws was in effect suspended and by the tacit understanding of the trade they were to be treated as if they did not exist. It could not therefore be urged that the parties were put to the necessity of agreeing to such differences, if having regard to the circumstances that prevailed, it was impracticable to do so and if these blanks were not filled in as originally contemplated the contract notes could certainly not be impeached as being not in accordance with the by-laws of the Association.30. It was, however, urged on behalf of the appellants that if the parties to the contracts intended not to comply with the requirements of By-laws 139 and 141 that would by itself vitiate the contracts because in that event the contracts would certainly be not in accordance with the By-laws of the Association. The parties in that event in tended to perpetrate an illegality at the very inception of the contracts and the contracts were therefore void. There is considerable force in this argument; but we do not feel called upon to consider the same in view of the fact that that was not the ground of which the validity of the suit contract was challenged in the plaint.31. We are therefore of the opinion that the omission to fill in those blanks in the contract notes did not spell any departure from an essential or a characteristic part of the contract form nor was the legal effect of the contracts in any manner changed thereby rendering the contracts void within the meaning of S. 8 of the Bombay Cotton Contracts Act, 1932.32. Both these grounds of attack against the validity of the contracts in question therefore fail and we are of the opinion that the contracts entered into between the appellants and the respondent were not void as alleged. The appellants were therefore not entitled to recover from the respondent the said sum of Rs. 1,80,099-8-0 or any part thereof as alleged or at all and we are of the opinion that the appellate Court was right in rejecting the appellants claim.33. We cannot part with this appeal without observing that the whole difficulty has been created by reason of the Association not having made the necessary alterations in the contract form in accordance with the situation as it obtained from time to time. When By-law 101 was suspended in operation the Association ought to have deleted the term as to measurement from the contract form. When the By-laws 139 and 141 were virtually abrogated by reason of the delivery contracts not being subjected to periodical settlements in the clearing house, the Association ought to have similarly deleted the last clause from the official contract form which required the difference of Rs....... above or below the settlement rates of hedge contract No.......to be filled in by the parties. Equally untenable was the retention of the expression "Hedge Contract No........." when the five different varieties of hedge contracts were abolished and one hedge contract named I.C.C. was substituted therefore. We fully endorse the observations made by the appellate Court in the course of its judgment :"We have had occasion to point out in the past now badly the by-laws of the East India Cotton Association are drafted and how clumsily the forms also settled, and the present form is an illustration of what we have had occasion to say in the past."The manner in which the official contract form which had been settled when the By-laws of the Association came first to be promulgated has been retained in its pristine glory in spite of the various changes made in the operation of the By-laws and the practice of the trade only enhances the difficulties of the parties sand enables the parties who are so minded to raise all sorts of disputes tenable or otherwise in order to avoid their liability in respect of the transactions effected by them in the Association. It may be hoped that the Association will take effective steps to bring the official contract form in conformity with the By-laws in operation from time to time and the practice of the trade prevailing in the Association. | 0[ds]22. This argument however ignores the fact that simultaneously with the suspension of the operation of the By-law 101, By-laws 96 and 119 which referred to forward and hedge contracts respectively were altered and provision was made therein to incorporate measures consequent upon the tender of bales bound with ropes in place of bales bound with hoops. The consequences of such tenders were worked out in the Bye-laws as thus amended and allowances in the price of bales bound with ropes as against the price of bales bound with hoops were also provided for . These allowances were in accordance with the resolution of the Board dated 20th November 1942, to be fixed before the commencement of the season and if such allowances were provided for there was nothing further to be done in regard to the difference in measurement, if any. If the situation which obtained after 20th November 1942, provided for a tender of bales bound with ropes instead of bales bound with hoops in fulfillment of the contracts entered into between the parties, that was well known to all the members of the Association and it was open to them while fixing the prices themselves to take count of the extra charges for insurance and freight, which would be payable by the purchaser in the event of bales bound with ropes being tendered instead of bales bound with hoops.It, therefore, follows that the omission to mention the measurements in the contract notes did not render the contracts not in accordance with the By-laws. There was no such By-law in operation at the time and even otherwise there was no need whatever to incorporate in the contract notes any term as to measurement. It could not therefore be said that there was any departure from an essential or a characteristic part of the contract form or that the legal effect of the contracts was changed so as to invalidate the same.It appears that the contention urged on behalf of the appellants would be more in consonance with business ideas because no business man would think of immediately forking out a large sum of money on the next ensuing settlement day. It would be tantamount to paying the price of the goods or a substantial part thereof long before the due date of delivery ever arrived. While recognising the necessity of arriving at an agreement in this manner we are, however, not impressed with the argument that in the event of no such agreement as to the difference having been reached it would even so be necessary to mention in the contract note that the difference agreed upon was nil. When the parties entered into the transactions all the terms and conditions of the contract would certainly be negotiated and agreed upon between them. It would be open to them, in view of the By-laws above refereed to, to agree upon the difference above or below the settlement rate of hedge contract for the purpose of facilitating the settlement through the clearing house.But if no such difference above or below the settlement rate of hedge contract were agreed upon between the parties, it would not necessarily follow that the word nil had got to be mentioned in the contract notes. The very fact that no difference above or below the settlement rate of hedge contract was agreed upon in the manner contemplated would be enough to spell out an agreement that no such difference was to be computed in arriving at the settlement rates in respect of these contracts. If that was the true position it would be superfluous to write the word "nil" as contended for by the appellants and the consequences, of such non-mention would be the same as if the difference agreed upon was nil.By-law 141(2) could then be worked out without any difficulty and the settlement rates in the case of delivery contracts would be fixed on the basis of the settlement price of the hedge contract taking into account the facts that there was either no difference which was agreed upon or a that the difference agreed upon was a specific one which was mentioned in the contract notes.We are therefore of the opinion that the omission to fill in those blanks in the contract notes did not spell any departure from an essential or a characteristic part of the contract form nor was the legal effect of the contracts in any manner changed thereby rendering the contracts void within the meaning of S. 8 of the Bombay Cotton Contracts Act, 1932.32. Both these grounds of attack against the validity of the contracts in question therefore fail and we are of the opinion that the contracts entered into between the appellants and the respondent were not void as alleged. The appellants were therefore not entitled to recover from the respondent the said sum of Rs. 1,80,099-8-0 or any part thereof as alleged or at all and we are of the opinion that the appellate Court was right in rejecting the appellants claim.33. We cannot part with this appeal without observing that the whole difficulty has been created by reason of the Association not having made the necessary alterations in the contract form in accordance with the situation as it obtained from time to time. When By-law 101 was suspended in operation the Association ought to have deleted the term as to measurement from the contract form. When the By-laws 139 and 141 were virtually abrogated by reason of the delivery contracts not being subjected to periodical settlements in the clearing house, the Association ought to have similarly deleted the last clause from the official contract form which required the difference of Rs....... above or below the settlement rates of hedge contract No.......to be filled in by the parties. Equally untenable was the retention of the expression "Hedge Contract No........." when the five different varieties of hedge contracts were abolished and one hedge contract named I.C.C. was substituted therefore. We fully endorse the observations made by the appellate Court in the course of its judgmenthave had occasion to point out in the past now badly the by-laws of the East India Cotton Association are drafted and how clumsily the forms also settled, and the present form is an illustration of what we have had occasion to say in themanner in which the official contract form which had been settled when the By-laws of the Association came first to be promulgated has been retained in its pristine glory in spite of the various changes made in the operation of the By-laws and the practice of the trade only enhances the difficulties of the parties sand enables the parties who are so minded to raise all sorts of disputes tenable or otherwise in order to avoid their liability in respect of the transactions effected by them in the Association. It may be hoped that the Association will take effective steps to bring the official contract form in conformity with the By-laws in operation from time to time and the practice of the trade prevailing in the Association. | 0 | 7,415 | 1,235 | ### 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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the parties would have to pay to or received from one another the differences calculated on the difference between the contract rates and those settlement rates.29. The whole of this discussion, however, is academic by reason of the fact that in practice delivery contracts were not put through any periodical settlements and at all material times the operation of this term in the official contract form had become obsolete. This position was not disputed on behalf of the appellants and their counsel stated before the Court that he did not wish to dispute the fact that delivery contracts were at no time submitted to periodical settlements in the Association. The effect of this procedure being adopted in the Association was tacitly to suspend the operation of these by-laws as to periodical settlements in respect of delivery contracts and it would be superfluous, nay absurd, on the part of the business people entering into contracts subject to the by-laws of the Association to incorporate in the contract form provisions which had become obsolete. If the contracts were not to pass through the periodical settlements in the clearing house no question would ever arise of settlement rates requiring to be fixed, much less of the basis of such settlement rates being determined, or of the difference of Rs.... above or below the settlement rate of hedge contracts being over agreed upon between the parties. If under those circumstances, the parties did not fill in those blanks which required to be filled in the official contract form on the basis of By-laws 139 and 141 being in operation, it could not be said that they had failed to substantially comply with the requirements of the official contract form. The official contract form had to be filled in so far as it was practicable. The operation of these by-laws was in effect suspended and by the tacit understanding of the trade they were to be treated as if they did not exist. It could not therefore be urged that the parties were put to the necessity of agreeing to such differences, if having regard to the circumstances that prevailed, it was impracticable to do so and if these blanks were not filled in as originally contemplated the contract notes could certainly not be impeached as being not in accordance with the by-laws of the Association.30. It was, however, urged on behalf of the appellants that if the parties to the contracts intended not to comply with the requirements of By-laws 139 and 141 that would by itself vitiate the contracts because in that event the contracts would certainly be not in accordance with the By-laws of the Association. The parties in that event in tended to perpetrate an illegality at the very inception of the contracts and the contracts were therefore void. There is considerable force in this argument; but we do not feel called upon to consider the same in view of the fact that that was not the ground of which the validity of the suit contract was challenged in the plaint.31. We are therefore of the opinion that the omission to fill in those blanks in the contract notes did not spell any departure from an essential or a characteristic part of the contract form nor was the legal effect of the contracts in any manner changed thereby rendering the contracts void within the meaning of S. 8 of the Bombay Cotton Contracts Act, 1932.32. Both these grounds of attack against the validity of the contracts in question therefore fail and we are of the opinion that the contracts entered into between the appellants and the respondent were not void as alleged. The appellants were therefore not entitled to recover from the respondent the said sum of Rs. 1,80,099-8-0 or any part thereof as alleged or at all and we are of the opinion that the appellate Court was right in rejecting the appellants claim.33. We cannot part with this appeal without observing that the whole difficulty has been created by reason of the Association not having made the necessary alterations in the contract form in accordance with the situation as it obtained from time to time. When By-law 101 was suspended in operation the Association ought to have deleted the term as to measurement from the contract form. When the By-laws 139 and 141 were virtually abrogated by reason of the delivery contracts not being subjected to periodical settlements in the clearing house, the Association ought to have similarly deleted the last clause from the official contract form which required the difference of Rs....... above or below the settlement rates of hedge contract No.......to be filled in by the parties. Equally untenable was the retention of the expression "Hedge Contract No........." when the five different varieties of hedge contracts were abolished and one hedge contract named I.C.C. was substituted therefore. We fully endorse the observations made by the appellate Court in the course of its judgment :"We have had occasion to point out in the past now badly the by-laws of the East India Cotton Association are drafted and how clumsily the forms also settled, and the present form is an illustration of what we have had occasion to say in the past."The manner in which the official contract form which had been settled when the By-laws of the Association came first to be promulgated has been retained in its pristine glory in spite of the various changes made in the operation of the By-laws and the practice of the trade only enhances the difficulties of the parties sand enables the parties who are so minded to raise all sorts of disputes tenable or otherwise in order to avoid their liability in respect of the transactions effected by them in the Association. It may be hoped that the Association will take effective steps to bring the official contract form in conformity with the By-laws in operation from time to time and the practice of the trade prevailing in the Association.
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to all the members of the Association and it was open to them while fixing the prices themselves to take count of the extra charges for insurance and freight, which would be payable by the purchaser in the event of bales bound with ropes being tendered instead of bales bound with hoops.It, therefore, follows that the omission to mention the measurements in the contract notes did not render the contracts not in accordance with the By-laws. There was no such By-law in operation at the time and even otherwise there was no need whatever to incorporate in the contract notes any term as to measurement. It could not therefore be said that there was any departure from an essential or a characteristic part of the contract form or that the legal effect of the contracts was changed so as to invalidate the same.It appears that the contention urged on behalf of the appellants would be more in consonance with business ideas because no business man would think of immediately forking out a large sum of money on the next ensuing settlement day. It would be tantamount to paying the price of the goods or a substantial part thereof long before the due date of delivery ever arrived. While recognising the necessity of arriving at an agreement in this manner we are, however, not impressed with the argument that in the event of no such agreement as to the difference having been reached it would even so be necessary to mention in the contract note that the difference agreed upon was nil. When the parties entered into the transactions all the terms and conditions of the contract would certainly be negotiated and agreed upon between them. It would be open to them, in view of the By-laws above refereed to, to agree upon the difference above or below the settlement rate of hedge contract for the purpose of facilitating the settlement through the clearing house.But if no such difference above or below the settlement rate of hedge contract were agreed upon between the parties, it would not necessarily follow that the word nil had got to be mentioned in the contract notes. The very fact that no difference above or below the settlement rate of hedge contract was agreed upon in the manner contemplated would be enough to spell out an agreement that no such difference was to be computed in arriving at the settlement rates in respect of these contracts. If that was the true position it would be superfluous to write the word "nil" as contended for by the appellants and the consequences, of such non-mention would be the same as if the difference agreed upon was nil.By-law 141(2) could then be worked out without any difficulty and the settlement rates in the case of delivery contracts would be fixed on the basis of the settlement price of the hedge contract taking into account the facts that there was either no difference which was agreed upon or a that the difference agreed upon was a specific one which was mentioned in the contract notes.We are therefore of the opinion that the omission to fill in those blanks in the contract notes did not spell any departure from an essential or a characteristic part of the contract form nor was the legal effect of the contracts in any manner changed thereby rendering the contracts void within the meaning of S. 8 of the Bombay Cotton Contracts Act, 1932.32. Both these grounds of attack against the validity of the contracts in question therefore fail and we are of the opinion that the contracts entered into between the appellants and the respondent were not void as alleged. The appellants were therefore not entitled to recover from the respondent the said sum of Rs. 1,80,099-8-0 or any part thereof as alleged or at all and we are of the opinion that the appellate Court was right in rejecting the appellants claim.33. We cannot part with this appeal without observing that the whole difficulty has been created by reason of the Association not having made the necessary alterations in the contract form in accordance with the situation as it obtained from time to time. When By-law 101 was suspended in operation the Association ought to have deleted the term as to measurement from the contract form. When the By-laws 139 and 141 were virtually abrogated by reason of the delivery contracts not being subjected to periodical settlements in the clearing house, the Association ought to have similarly deleted the last clause from the official contract form which required the difference of Rs....... above or below the settlement rates of hedge contract No.......to be filled in by the parties. Equally untenable was the retention of the expression "Hedge Contract No........." when the five different varieties of hedge contracts were abolished and one hedge contract named I.C.C. was substituted therefore. We fully endorse the observations made by the appellate Court in the course of its judgmenthave had occasion to point out in the past now badly the by-laws of the East India Cotton Association are drafted and how clumsily the forms also settled, and the present form is an illustration of what we have had occasion to say in themanner in which the official contract form which had been settled when the By-laws of the Association came first to be promulgated has been retained in its pristine glory in spite of the various changes made in the operation of the By-laws and the practice of the trade only enhances the difficulties of the parties sand enables the parties who are so minded to raise all sorts of disputes tenable or otherwise in order to avoid their liability in respect of the transactions effected by them in the Association. It may be hoped that the Association will take effective steps to bring the official contract form in conformity with the By-laws in operation from time to time and the practice of the trade prevailing in the Association.
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The Regional Provident Fund Commissioner, Andhra Pradesh Vs. Sri. T.S. Hariharan | the establishment employing 20 or more persons means that the person so employed may be employed by the establishment for any purpose whatsoever and for however short a duration or that the employment must be for some minimum period in the establishment. The language used in the clause does not give any clear indication. We have, therefore, to construe this word in the light of the legislative scheme, the object and purpose of enacting this clause and the ultimate effect of adopting one or the other construction. The relevant sections of the statute have already been reproduced. 7. Section 16 which has already been set out in extenso seems to us to throw considerable light on the point raised. It may be recalled that this section excludes from the applicability of the Act establishments belonging to the Government and to local authorities and infant establishments. It is therefore, obvious that this Act is intended to apply only where an establishment has attained sufficient financial stability and is prosperous enough to be able to afford regular contribution provided by the Act. Contribution by the employer is an essential part of the statutory scheme for effectuating the object of inducing the workmen to save some- thing regularly. The establishment, therefore, must posses stable financial capacity to bear the burder of regular contribution to the Fund under the Act. In this connection it may be recalled that by virtue of Section 1 (5) an establishment to which the Act is applied continues to be governed by the Act notwithstanding that the number of persons employed by it at any time falls below the required number. This liability to be governed by the Act ceases only if the terms of the Proviso to Section 1 (5) are complied with. The financial capacity of the establishment to bear the burden must, therefore, have some semblance of a reasonably long term stability. In other words, the employment of requisite number of persons must be dictated by the normal regular requirement of the establishment reflecting its financial capacity and stability. It, therefore, follows from this that the number of persons to be considered to have been employed by an establishment for the purpose of this Act has to be determined by taking into account the general requirements of the establishment for its regular work which should also have a commercial nexus with its general financial capacity and stability. This seems to us to be the correct approach under the statutory scheme. 8. To accede to the appellants argument would lead to some startling consequences. By way of illustration, if for the purpose of extinguishing accidental fire an establishment is compelled to employ a few persons for about a couple of hours, even then, however weak and unstable its general financial capacity, the establishment would be covered by the Act and would have to contribute towards the provident fund for the benefit of its regular employees, of course, excluding those whose services were utilised for a short while for extinguishing the fire. In this illustration we are assuming that the employees would have no objection to being governed by the Act. This in our opinion, could never have been the intention of the legislature. Similarly, we find it difficult to impute to the legislature an intention to exclude from the application of the Act an establishment which regularly employs for its general business the required number of persons for a major part of the year, say, for 360 days every year, merely because the employment of the required number does not extend to full one year. Both the extreme views, the one canvassed on behalf of the appellant and the other postulated in the observation of the High Court that the required number of persons must continuously work in the establishment for one year, do not conform to the scheme and object of the Act and are, therefore, unacceptable. 9. Considering the language of Section 1 (3) (b) in the light of the foregoing discussion it appears to us that employment of a few persons on account of some emergency or for a very short period necessitated by some abnormal contingency which is not a regular feature of the business of the establishment and which does not reflect its business prosperity or its financial capacity and stability from which it can reasonably be concluded that the establishment can in the normal way bear the burden of contribution towards the provident fund under the Act would not be covered by this definition. The word "employment" must, therefore, be construed as employment in the regular course of business of the establishment; such employment obviously would not include employment of a few persons for a short period on account of some passing necessity or some temporary emergency beyond the control of the company. This must necessarily require determination of the question in each case on its own peculiar facts. The approach pointed out by us must be kept in view when determining the question of employment in a given case. 10. The appellants learned counsel argued that in the present case the respondent has to employ a few persons every year regularly from June to September for supplying water to the hotel because of failure of rains. This, according to him, would be a regular employment and the High Court was wrong in holding to the contrary. There is no finding of the High Court to this effect and indeed no attempt was made before us also to substantiate this bald assertion. We are, therefore, unable to accept this contention on the present record. The general approach of the High Court to the problem raised in this case seems to us to be broadly speaking, correct; so is its final conclusion. The only observation of the High Court which required consideration is that the subsection in question contemplates the required number of persons to work in the establishment continuously for one year. On this point we have clarified the legal position. | 0[ds]7. Section 16 which has already been set out in extenso seems to us to throw considerable light on the point raised. It may be recalled that this section excludes from the applicability of the Act establishments belonging to the Government and to local authorities and infant establishments. It is therefore, obvious that this Act is intended to apply only where an establishment has attained sufficient financial stability and is prosperous enough to be able to afford regular contribution provided by the Act. Contribution by the employer is an essential part of the statutory scheme for effectuating the object of inducing the workmen to save some- thing regularly. The establishment, therefore, must posses stable financial capacity to bear the burder of regular contribution to the Fund under the Act. In this connection it may be recalled that by virtue of Section 1 (5) an establishment to which the Act is applied continues to be governed by the Act notwithstanding that the number of persons employed by it at any time falls below the required number. This liability to be governed by the Act ceases only if the terms of the Proviso to Section 1 (5) are complied with. The financial capacity of the establishment to bear the burden must, therefore, have some semblance of a reasonably long term stability. In other words, the employment of requisite number of persons must be dictated by the normal regular requirement of the establishment reflecting its financial capacity and stability. It, therefore, follows from this that the number of persons to be considered to have been employed by an establishment for the purpose of this Act has to be determined by taking into account the general requirements of the establishment for its regular work which should also have a commercial nexus with its general financial capacity and stability. This seems to us to be the correct approach under the statutory scheme8. To accede to the appellants argument would lead to some startling consequences. By way of illustration, if for the purpose of extinguishing accidental fire an establishment is compelled to employ a few persons for about a couple of hours, even then, however weak and unstable its general financial capacity, the establishment would be covered by the Act and would have to contribute towards the provident fund for the benefit of its regular employees, of course, excluding those whose services were utilised for a short while for extinguishing the fire. In this illustration we are assuming that the employees would have no objection to being governed by the Act. This in our opinion, could never have been the intention of the legislature. Similarly, we find it difficult to impute to the legislature an intention to exclude from the application of the Act an establishment which regularly employs for its general business the required number of persons for a major part of the year, say, for 360 days every year, merely because the employment of the required number does not extend to full one year. Both the extreme views, the one canvassed on behalf of the appellant and the other postulated in the observation of the High Court that the required number of persons must continuously work in the establishment for one year, do not conform to the scheme and object of the Act and are, therefore, unacceptable9. Considering the language of Section 1 (3) (b) in the light of the foregoing discussion it appears to us that employment of a few persons on account of some emergency or for a very short period necessitated by some abnormal contingency which is not a regular feature of the business of the establishment and which does not reflect its business prosperity or its financial capacity and stability from which it can reasonably be concluded that the establishment can in the normal way bear the burden of contribution towards the provident fund under the Act would not be covered by this definition. The word "employment" must, therefore, be construed as employment in the regular course of business of the establishment; such employment obviously would not include employment of a few persons for a short period on account of some passing necessity or some temporary emergency beyond the control of the company. This must necessarily require determination of the question in each case on its own peculiar facts. The approach pointed out by us must be kept in view when determining the question of employment in a given caseWe are, therefore, unable to accept this contention on the present record. The general approach of the High Court to the problem raised in this case seems to us to be broadly speaking, correct; so is its final conclusion. The only observation of the High Court which required consideration is that the subsection in question contemplates the required number of persons to work in the establishment continuously for one year. On this point we have clarified the legal positio3. The question requiring our to determination is a very short one. As there is no representation on behalf of the respondent in this Court and, therefore, we do not have the benefit of the respondents point of view we propose to confine ourselves strictly to the limited question of thescope of Clauses (a) and (b) ofsubsection (3) of Section 1and this judgment is not intended to be considered as expressing any opinion on other controversial, aspectsThe language used in the clause does not give any clear indication. We have, therefore, to construe this word in the light of the legislative scheme, the object and purpose of enacting this clause and the ultimate effect of adopting one or the other construction. The relevant sections of the statute have already been reproduced. | 0 | 3,812 | 1,033 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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the establishment employing 20 or more persons means that the person so employed may be employed by the establishment for any purpose whatsoever and for however short a duration or that the employment must be for some minimum period in the establishment. The language used in the clause does not give any clear indication. We have, therefore, to construe this word in the light of the legislative scheme, the object and purpose of enacting this clause and the ultimate effect of adopting one or the other construction. The relevant sections of the statute have already been reproduced. 7. Section 16 which has already been set out in extenso seems to us to throw considerable light on the point raised. It may be recalled that this section excludes from the applicability of the Act establishments belonging to the Government and to local authorities and infant establishments. It is therefore, obvious that this Act is intended to apply only where an establishment has attained sufficient financial stability and is prosperous enough to be able to afford regular contribution provided by the Act. Contribution by the employer is an essential part of the statutory scheme for effectuating the object of inducing the workmen to save some- thing regularly. The establishment, therefore, must posses stable financial capacity to bear the burder of regular contribution to the Fund under the Act. In this connection it may be recalled that by virtue of Section 1 (5) an establishment to which the Act is applied continues to be governed by the Act notwithstanding that the number of persons employed by it at any time falls below the required number. This liability to be governed by the Act ceases only if the terms of the Proviso to Section 1 (5) are complied with. The financial capacity of the establishment to bear the burden must, therefore, have some semblance of a reasonably long term stability. In other words, the employment of requisite number of persons must be dictated by the normal regular requirement of the establishment reflecting its financial capacity and stability. It, therefore, follows from this that the number of persons to be considered to have been employed by an establishment for the purpose of this Act has to be determined by taking into account the general requirements of the establishment for its regular work which should also have a commercial nexus with its general financial capacity and stability. This seems to us to be the correct approach under the statutory scheme. 8. To accede to the appellants argument would lead to some startling consequences. By way of illustration, if for the purpose of extinguishing accidental fire an establishment is compelled to employ a few persons for about a couple of hours, even then, however weak and unstable its general financial capacity, the establishment would be covered by the Act and would have to contribute towards the provident fund for the benefit of its regular employees, of course, excluding those whose services were utilised for a short while for extinguishing the fire. In this illustration we are assuming that the employees would have no objection to being governed by the Act. This in our opinion, could never have been the intention of the legislature. Similarly, we find it difficult to impute to the legislature an intention to exclude from the application of the Act an establishment which regularly employs for its general business the required number of persons for a major part of the year, say, for 360 days every year, merely because the employment of the required number does not extend to full one year. Both the extreme views, the one canvassed on behalf of the appellant and the other postulated in the observation of the High Court that the required number of persons must continuously work in the establishment for one year, do not conform to the scheme and object of the Act and are, therefore, unacceptable. 9. Considering the language of Section 1 (3) (b) in the light of the foregoing discussion it appears to us that employment of a few persons on account of some emergency or for a very short period necessitated by some abnormal contingency which is not a regular feature of the business of the establishment and which does not reflect its business prosperity or its financial capacity and stability from which it can reasonably be concluded that the establishment can in the normal way bear the burden of contribution towards the provident fund under the Act would not be covered by this definition. The word "employment" must, therefore, be construed as employment in the regular course of business of the establishment; such employment obviously would not include employment of a few persons for a short period on account of some passing necessity or some temporary emergency beyond the control of the company. This must necessarily require determination of the question in each case on its own peculiar facts. The approach pointed out by us must be kept in view when determining the question of employment in a given case. 10. The appellants learned counsel argued that in the present case the respondent has to employ a few persons every year regularly from June to September for supplying water to the hotel because of failure of rains. This, according to him, would be a regular employment and the High Court was wrong in holding to the contrary. There is no finding of the High Court to this effect and indeed no attempt was made before us also to substantiate this bald assertion. We are, therefore, unable to accept this contention on the present record. The general approach of the High Court to the problem raised in this case seems to us to be broadly speaking, correct; so is its final conclusion. The only observation of the High Court which required consideration is that the subsection in question contemplates the required number of persons to work in the establishment continuously for one year. On this point we have clarified the legal position.
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7. Section 16 which has already been set out in extenso seems to us to throw considerable light on the point raised. It may be recalled that this section excludes from the applicability of the Act establishments belonging to the Government and to local authorities and infant establishments. It is therefore, obvious that this Act is intended to apply only where an establishment has attained sufficient financial stability and is prosperous enough to be able to afford regular contribution provided by the Act. Contribution by the employer is an essential part of the statutory scheme for effectuating the object of inducing the workmen to save some- thing regularly. The establishment, therefore, must posses stable financial capacity to bear the burder of regular contribution to the Fund under the Act. In this connection it may be recalled that by virtue of Section 1 (5) an establishment to which the Act is applied continues to be governed by the Act notwithstanding that the number of persons employed by it at any time falls below the required number. This liability to be governed by the Act ceases only if the terms of the Proviso to Section 1 (5) are complied with. The financial capacity of the establishment to bear the burden must, therefore, have some semblance of a reasonably long term stability. In other words, the employment of requisite number of persons must be dictated by the normal regular requirement of the establishment reflecting its financial capacity and stability. It, therefore, follows from this that the number of persons to be considered to have been employed by an establishment for the purpose of this Act has to be determined by taking into account the general requirements of the establishment for its regular work which should also have a commercial nexus with its general financial capacity and stability. This seems to us to be the correct approach under the statutory scheme8. To accede to the appellants argument would lead to some startling consequences. By way of illustration, if for the purpose of extinguishing accidental fire an establishment is compelled to employ a few persons for about a couple of hours, even then, however weak and unstable its general financial capacity, the establishment would be covered by the Act and would have to contribute towards the provident fund for the benefit of its regular employees, of course, excluding those whose services were utilised for a short while for extinguishing the fire. In this illustration we are assuming that the employees would have no objection to being governed by the Act. This in our opinion, could never have been the intention of the legislature. Similarly, we find it difficult to impute to the legislature an intention to exclude from the application of the Act an establishment which regularly employs for its general business the required number of persons for a major part of the year, say, for 360 days every year, merely because the employment of the required number does not extend to full one year. Both the extreme views, the one canvassed on behalf of the appellant and the other postulated in the observation of the High Court that the required number of persons must continuously work in the establishment for one year, do not conform to the scheme and object of the Act and are, therefore, unacceptable9. Considering the language of Section 1 (3) (b) in the light of the foregoing discussion it appears to us that employment of a few persons on account of some emergency or for a very short period necessitated by some abnormal contingency which is not a regular feature of the business of the establishment and which does not reflect its business prosperity or its financial capacity and stability from which it can reasonably be concluded that the establishment can in the normal way bear the burden of contribution towards the provident fund under the Act would not be covered by this definition. The word "employment" must, therefore, be construed as employment in the regular course of business of the establishment; such employment obviously would not include employment of a few persons for a short period on account of some passing necessity or some temporary emergency beyond the control of the company. This must necessarily require determination of the question in each case on its own peculiar facts. The approach pointed out by us must be kept in view when determining the question of employment in a given caseWe are, therefore, unable to accept this contention on the present record. The general approach of the High Court to the problem raised in this case seems to us to be broadly speaking, correct; so is its final conclusion. The only observation of the High Court which required consideration is that the subsection in question contemplates the required number of persons to work in the establishment continuously for one year. On this point we have clarified the legal positio3. The question requiring our to determination is a very short one. As there is no representation on behalf of the respondent in this Court and, therefore, we do not have the benefit of the respondents point of view we propose to confine ourselves strictly to the limited question of thescope of Clauses (a) and (b) ofsubsection (3) of Section 1and this judgment is not intended to be considered as expressing any opinion on other controversial, aspectsThe language used in the clause does not give any clear indication. We have, therefore, to construe this word in the light of the legislative scheme, the object and purpose of enacting this clause and the ultimate effect of adopting one or the other construction. The relevant sections of the statute have already been reproduced.
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L.S. Raju Vs. State of Mysore | 1. This is a clear case for transfer. The petitioner has been convicted of an attempt to murder by poisoning Mr. Medappa the Chief Justice of Mysore, on whose complaint the proceedings were instituted. The case aroused considerable local excitement and sensation, having regard to the position of the complainant as the head of the judiciary, the trial had to be held before a Judge specially brought down from Bombay. This, however, made no. difference to the forum of appeal which was still the High Court at Mysore and the petitioner accordingly filed his appeal in that Court. He now prays for a transfer of the appeal to some other High Court as he apprehends that he will not have a fair and impartial hearing of the appeal in the Mysore High Court which is presided over by the complainant.2. This is obviously a weighty ground for the transfer of the case, and the Advocate-General of the respondent State leaves the matter entirely in our hands. For any sound and reputable system of administration of justice it is as important that justice should appear to be done as that it is, in fact, done and it is no. reflection on the independence and impartiality of the learned Judges of the Mysore High Court to say that the ends of justice plainly require in the circumstances of this case that this appeal should be transferred to Court outside the State of Mysore. | 1[ds]2. This is obviously a weighty ground for the transfer of the case, and theof the respondent State leaves the matter entirely in our hands. For any sound and reputable system of administration of justice it is as important that justice should appear to be done as that it is, in fact, done and it is no. reflection on the independence and impartiality of the learned Judges of the Mysore High Court to say that the ends of justice plainly require in the circumstances of this case that this appeal should be transferred to Court outside the State of Mysore. | 1 | 259 | 111 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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1. This is a clear case for transfer. The petitioner has been convicted of an attempt to murder by poisoning Mr. Medappa the Chief Justice of Mysore, on whose complaint the proceedings were instituted. The case aroused considerable local excitement and sensation, having regard to the position of the complainant as the head of the judiciary, the trial had to be held before a Judge specially brought down from Bombay. This, however, made no. difference to the forum of appeal which was still the High Court at Mysore and the petitioner accordingly filed his appeal in that Court. He now prays for a transfer of the appeal to some other High Court as he apprehends that he will not have a fair and impartial hearing of the appeal in the Mysore High Court which is presided over by the complainant.2. This is obviously a weighty ground for the transfer of the case, and the Advocate-General of the respondent State leaves the matter entirely in our hands. For any sound and reputable system of administration of justice it is as important that justice should appear to be done as that it is, in fact, done and it is no. reflection on the independence and impartiality of the learned Judges of the Mysore High Court to say that the ends of justice plainly require in the circumstances of this case that this appeal should be transferred to Court outside the State of Mysore.
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2. This is obviously a weighty ground for the transfer of the case, and theof the respondent State leaves the matter entirely in our hands. For any sound and reputable system of administration of justice it is as important that justice should appear to be done as that it is, in fact, done and it is no. reflection on the independence and impartiality of the learned Judges of the Mysore High Court to say that the ends of justice plainly require in the circumstances of this case that this appeal should be transferred to Court outside the State of Mysore.
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Kedarnath Jute Manufacturing Co. Ltd Vs. The Commercial Tax Officer, Calcutta & Others | terms of sub-cl. (ii) will be exempted provided a declaration in the form prescribed is furnished. To put it in order words, a dealer cannot get the exemption unless be furnishes the declaration in the prescribed form. It is well settled that "the effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it": see "Craies on Statute Law", 6th Edn., p. 217.If the intention of the Legislature was to give exemption if the terms of the substantive part of sub-cl. (ii) alone are complied with, the proviso becomes redundant and otiose. To accept the argument of the learned counsel for the appellant is to ignore the proviso altogether, for if his contention be correct it will lead to the position that if the declaration form is furnished, well and good; but, if not furnished, other evidence can be produced. That is to rewrite the clause and to omit the proviso. That will defeat the express intention of the Legislature. Nor does R. 27A support the contrary construction. The expression "on demand" only fixes the point of time when the declaration are to be produced; otherwise the rule would be inconsistent with the section. Section 5 (2) (a) (ii) says that the declaration form is to be furnished by the dealer and R. 27A says that it shall be furnished on demand, that is to say it fixes the time when the form is to be furnished. This reconciles the provisions of R. 27A with those of S. 5 (2) (a) (ii) of the Act, whereas the construction suggested by the learned counsel introduces an incongruity which shall be avoided. Section 21A on which reliance is placed has no bearing on the question to be decided. It only empowers the Commissioner or any person appointed to assist him under sub-s. (1) of S. 3 to take evidence on oath, etc. It can be invoked only in a case where the authority concerned is empowered to take evidence in respect of any particular matter; but that does not enable him to ignore a statutory condition to claim exemption. 9. Sub-rules (3) and (4) of R.27A are not helpful to the appellant. They provide only safeguards against abuse of the declaration forms by the purchasing dealers; they do not enable the selling dealer to either directly apply or to compel the purchasing dealers to apply for duplicate forms; nor do they enjoin the appropriate authority to give the selling dealer a duplicate form to replace the lost one. We realise that the section and the rules as they stand may conceivably cause unmerited hardship to an honest dealer. He may have lost the declaration forms by a pure accident, such as fire, theft, etc., and yet he will be penalised for something for which he is not responsible. But it is for the Legislature or for the rule-making authority to intervene to soften rigour of the provisions and it is not for this Court to do so where the provisions are clear and unambiguous. 10. There is an understandable reason for the stringency of the provisions. The object of S. 5 (2) (a) (ii) of the Act and the rules made thereunder is self-evident. While they are obviously intended to give exemption to a dealer in respect of sales to registered dealers of specified classes of goods, it seeks also to prevent fraud and collusion in an attempt to evade tax. In the nature of things, in view of innumerable transactions that may be entered into between dealers, it will wellnigh be impossible for the taxing authorities to ascertain in each case whether a dealer has sold the specified goods to another for the purposes mentioned in the section. Therefore, presumably to achieve the two fold object, namely, prevention of fraud and facilitating administrative efficiency, the exemption given is made subject to a condition that the person claiming the exemption shall furnish a declaration form in the manner prescribed under the section. The liberal construction suggested will facilities the commission of fraud and introduce administrative inconveniences, both of which the provision of the said clause seek to avoid. 11. The decision of this Court in State of Orissa v. M. A. Tulloch and Co. Ltd., (1964) 15 STC 641 (SC), does not help the appellant. That decision was concerned with S. 5 (2) (a) (ii) of the Orissa Sales Tax Act, 1947. That section was similar in terms to S. 5 (2) (a) (ii) of the Act in question, but there was no proviso to that section in the Orissa Act similar to the one found in the present section. That makes all the difference, for it is the proviso that imposes the condition. But under R. 27 (2) made under the Orissa Act "a dealer shall produce a true declaration in writing by the purchasing dealer or by such responsible person as may be authorised in writing in this behalf by such dealer that the goods in question are specified in the purchasing dealers certificate of registration as being required for resale by him or in the execution of any contract." This Court held that the said mandatory provision was inconsistent with S. 5 (2) (a) (ii) of the Orissa Sales Tax Act, and to avoid that conflict it reconciled both the provisions by holding that the rule was only directory and, therefore, it would be enough it was substantially complied with. The said provisions may afford a guide for amending the relevant provisions of the Act and the rules made thereunder, but do not furnish any help for construing them. 12. Before parting with the case we must make it clear that we are not expressing any opinion on the bona fides of the appellant or the appropriate sales tax authorities for we have not scrutinized the evidence in that regard. | 0[ds]9. Sub-rules (3) and (4) of R.27A are not helpful to the appellant. They provide only safeguards against abuse of the declaration forms by the purchasing dealers; they do not enable the selling dealer to either directly apply or to compel the purchasing dealers to apply for duplicate forms; nor do they enjoin the appropriate authority to give the selling dealer a duplicate form to replace the lost one. We realise that the section and the rules as they stand may conceivably cause unmerited hardship to an honest dealer. He may have lost the declaration forms by a pure accident, such as fire, theft, etc., and yet he will be penalised for something for which he is not responsible. But it is for the Legislature or for the rule-making authority to intervene to soften rigour of the provisions and it is not for this Court to do so where the provisions are clear and unambiguous10. There is an understandable reason for the stringency of the provisions. The object of S. 5 (2) (a) (ii) of the Act and the rules made thereunder is self-evident. While they are obviously intended to give exemption to a dealer in respect of sales to registered dealers of specified classes of goods, it seeks also to prevent fraud and collusion in an attempt to evade tax. In the nature of things, in view of innumerable transactions that may be entered into between dealers, it will wellnigh be impossible for the taxing authorities to ascertain in each case whether a dealer has sold the specified goods to another for the purposes mentioned in the section. Therefore, presumably to achieve the two fold object, namely, prevention of fraud and facilitating administrative efficiency, the exemption given is made subject to a condition that the person claiming the exemption shall furnish a declaration form in the manner prescribed under the section. The liberal construction suggested will facilities the commission of fraud and introduce administrative inconveniences, both of which the provision of the said clause seek to avoid11. The decision of this Court in State of Orissa v. M. A. Tulloch and Co. Ltd., (1964) 15 STC 641 (SC), does not help the appellant. That decision was concerned with S. 5 (2) (a) (ii) of the Orissa Sales Tax Act, 1947. That section was similar in terms to S. 5 (2) (a) (ii) of the Act in question, but there was no proviso to that section in the Orissa Act similar to the one found in the present section. That makes all the difference, for it is the proviso that imposes the condition. But under R. 27 (2) made under the Orissa Act "a dealer shall produce a true declaration in writing by the purchasing dealer or by such responsible person as may be authorised in writing in this behalf by such dealer that the goods in question are specified in the purchasing dealers certificate of registration as being required for resale by him or in the execution of any contract." This Court held that the said mandatory provision was inconsistent with S. 5 (2) (a) (ii) of the Orissa Sales Tax Act, and to avoid that conflict it reconciled both the provisions by holding that the rule was only directory and, therefore, it would be enough it was substantially complied with. The said provisions may afford a guide for amending the relevant provisions of the Act and the rules made thereunder, but do not furnish any help for construing them. | 0 | 2,467 | 663 | ### 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:
terms of sub-cl. (ii) will be exempted provided a declaration in the form prescribed is furnished. To put it in order words, a dealer cannot get the exemption unless be furnishes the declaration in the prescribed form. It is well settled that "the effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it": see "Craies on Statute Law", 6th Edn., p. 217.If the intention of the Legislature was to give exemption if the terms of the substantive part of sub-cl. (ii) alone are complied with, the proviso becomes redundant and otiose. To accept the argument of the learned counsel for the appellant is to ignore the proviso altogether, for if his contention be correct it will lead to the position that if the declaration form is furnished, well and good; but, if not furnished, other evidence can be produced. That is to rewrite the clause and to omit the proviso. That will defeat the express intention of the Legislature. Nor does R. 27A support the contrary construction. The expression "on demand" only fixes the point of time when the declaration are to be produced; otherwise the rule would be inconsistent with the section. Section 5 (2) (a) (ii) says that the declaration form is to be furnished by the dealer and R. 27A says that it shall be furnished on demand, that is to say it fixes the time when the form is to be furnished. This reconciles the provisions of R. 27A with those of S. 5 (2) (a) (ii) of the Act, whereas the construction suggested by the learned counsel introduces an incongruity which shall be avoided. Section 21A on which reliance is placed has no bearing on the question to be decided. It only empowers the Commissioner or any person appointed to assist him under sub-s. (1) of S. 3 to take evidence on oath, etc. It can be invoked only in a case where the authority concerned is empowered to take evidence in respect of any particular matter; but that does not enable him to ignore a statutory condition to claim exemption. 9. Sub-rules (3) and (4) of R.27A are not helpful to the appellant. They provide only safeguards against abuse of the declaration forms by the purchasing dealers; they do not enable the selling dealer to either directly apply or to compel the purchasing dealers to apply for duplicate forms; nor do they enjoin the appropriate authority to give the selling dealer a duplicate form to replace the lost one. We realise that the section and the rules as they stand may conceivably cause unmerited hardship to an honest dealer. He may have lost the declaration forms by a pure accident, such as fire, theft, etc., and yet he will be penalised for something for which he is not responsible. But it is for the Legislature or for the rule-making authority to intervene to soften rigour of the provisions and it is not for this Court to do so where the provisions are clear and unambiguous. 10. There is an understandable reason for the stringency of the provisions. The object of S. 5 (2) (a) (ii) of the Act and the rules made thereunder is self-evident. While they are obviously intended to give exemption to a dealer in respect of sales to registered dealers of specified classes of goods, it seeks also to prevent fraud and collusion in an attempt to evade tax. In the nature of things, in view of innumerable transactions that may be entered into between dealers, it will wellnigh be impossible for the taxing authorities to ascertain in each case whether a dealer has sold the specified goods to another for the purposes mentioned in the section. Therefore, presumably to achieve the two fold object, namely, prevention of fraud and facilitating administrative efficiency, the exemption given is made subject to a condition that the person claiming the exemption shall furnish a declaration form in the manner prescribed under the section. The liberal construction suggested will facilities the commission of fraud and introduce administrative inconveniences, both of which the provision of the said clause seek to avoid. 11. The decision of this Court in State of Orissa v. M. A. Tulloch and Co. Ltd., (1964) 15 STC 641 (SC), does not help the appellant. That decision was concerned with S. 5 (2) (a) (ii) of the Orissa Sales Tax Act, 1947. That section was similar in terms to S. 5 (2) (a) (ii) of the Act in question, but there was no proviso to that section in the Orissa Act similar to the one found in the present section. That makes all the difference, for it is the proviso that imposes the condition. But under R. 27 (2) made under the Orissa Act "a dealer shall produce a true declaration in writing by the purchasing dealer or by such responsible person as may be authorised in writing in this behalf by such dealer that the goods in question are specified in the purchasing dealers certificate of registration as being required for resale by him or in the execution of any contract." This Court held that the said mandatory provision was inconsistent with S. 5 (2) (a) (ii) of the Orissa Sales Tax Act, and to avoid that conflict it reconciled both the provisions by holding that the rule was only directory and, therefore, it would be enough it was substantially complied with. The said provisions may afford a guide for amending the relevant provisions of the Act and the rules made thereunder, but do not furnish any help for construing them. 12. Before parting with the case we must make it clear that we are not expressing any opinion on the bona fides of the appellant or the appropriate sales tax authorities for we have not scrutinized the evidence in that regard.
### Response:
0
### Explanation:
9. Sub-rules (3) and (4) of R.27A are not helpful to the appellant. They provide only safeguards against abuse of the declaration forms by the purchasing dealers; they do not enable the selling dealer to either directly apply or to compel the purchasing dealers to apply for duplicate forms; nor do they enjoin the appropriate authority to give the selling dealer a duplicate form to replace the lost one. We realise that the section and the rules as they stand may conceivably cause unmerited hardship to an honest dealer. He may have lost the declaration forms by a pure accident, such as fire, theft, etc., and yet he will be penalised for something for which he is not responsible. But it is for the Legislature or for the rule-making authority to intervene to soften rigour of the provisions and it is not for this Court to do so where the provisions are clear and unambiguous10. There is an understandable reason for the stringency of the provisions. The object of S. 5 (2) (a) (ii) of the Act and the rules made thereunder is self-evident. While they are obviously intended to give exemption to a dealer in respect of sales to registered dealers of specified classes of goods, it seeks also to prevent fraud and collusion in an attempt to evade tax. In the nature of things, in view of innumerable transactions that may be entered into between dealers, it will wellnigh be impossible for the taxing authorities to ascertain in each case whether a dealer has sold the specified goods to another for the purposes mentioned in the section. Therefore, presumably to achieve the two fold object, namely, prevention of fraud and facilitating administrative efficiency, the exemption given is made subject to a condition that the person claiming the exemption shall furnish a declaration form in the manner prescribed under the section. The liberal construction suggested will facilities the commission of fraud and introduce administrative inconveniences, both of which the provision of the said clause seek to avoid11. The decision of this Court in State of Orissa v. M. A. Tulloch and Co. Ltd., (1964) 15 STC 641 (SC), does not help the appellant. That decision was concerned with S. 5 (2) (a) (ii) of the Orissa Sales Tax Act, 1947. That section was similar in terms to S. 5 (2) (a) (ii) of the Act in question, but there was no proviso to that section in the Orissa Act similar to the one found in the present section. That makes all the difference, for it is the proviso that imposes the condition. But under R. 27 (2) made under the Orissa Act "a dealer shall produce a true declaration in writing by the purchasing dealer or by such responsible person as may be authorised in writing in this behalf by such dealer that the goods in question are specified in the purchasing dealers certificate of registration as being required for resale by him or in the execution of any contract." This Court held that the said mandatory provision was inconsistent with S. 5 (2) (a) (ii) of the Orissa Sales Tax Act, and to avoid that conflict it reconciled both the provisions by holding that the rule was only directory and, therefore, it would be enough it was substantially complied with. The said provisions may afford a guide for amending the relevant provisions of the Act and the rules made thereunder, but do not furnish any help for construing them.
|
Navinchandra N. Majithia Vs. State Of Meghalaya | the spot; (2) ascertainment of the facts and circumstances of the case; (3) discovery and arrest of the suspected offender; (4) collection of evidence relating to the commission of the offence which may consist of - (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial; and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a magistrate for trial and, if so, taking the necessary steps for the same by the filling of a charge-sheet under Section 173." (vide H.N. Rishbud v. State of Delhi, AIR 1955 SC 196 and State of Madhya Pradesh v. Mubarak Ali, AIR 1959 SC 707 ). 11. All the above duties are conferred by the statute on the police and they shall be carried out as they are statutory duties. The sublime idea behind formulating such steps for conducting investigation is to enable the statutory authority to independently carry out the investigation without being influenced by any of the interested parties. Investigation must not only be fair but impartial and the conclusion reached by them should be unbiased. 12. A Division Bench of the Madras High Court had pointed to that object of the statutory investigation in re Muddamma Malla Reddy, 1954 Crl. L.J. 167 through the following observations : "The investigating police are primarily the guardians of the liberty of innocent persons. A heavy responsibility devolves on them of seeing that innocent persons are not charged on irresponsible and false implication. There is a duty cast on the investigating police to scrutinize a first complaint in which number of persons are implicated with rigorous care and to refrain from building up a case on its basis unless satisfied of its truth." 13. In Sirajjuddin v. State of Madras, 1970(3) SCR 931 this Court said thus, after referring to various provisions in the Code dealing with investigation : "All the above provisions of the Code are aimed at securing a fair investigation into the facts and circumstances of the criminal case; however serious the crime and howsoever incriminating the circumstances may be against a person supposed to be guilty of a crime the Code of Criminal Procedure aims at securing a conviction if it can be had by the use of utmost fairness on the part of the officers investigating the crime before the lodging of a charge-sheet. Clearly the idea is that no one should be put to the harassment of a criminal trial unless there are good and substantial reasons for holding it." 14. The said observations were followed by this Court in State of Rajasthan v. Gurcharandas Chadha, 1980(1) SCC 250. 15. The Code does not recognise private investigating agency. If any person is interested in hiring any such private agency, he may do so at his own risk and cost, but such investigation would not be regarded as investigation made under law. Any evidence collected in such private investigation and any conclusion reached by such investigators cannot be presented by Public Prosecutor in any trial. Of course it may be possible for the defence to present such evidence. In this context, we may refer to a recent decision of this Court R. Sarala v. T.S. Velu, 2000(2) RCR (Crl.) 637 : 2000(4) SCC 459. This Court said that even a Public Prosecutor cannot be officially involved during the stage of investigation. The following observations made by this Court in the said decision will be useful : "Investigation and prosecution are two different facets in the administration of criminal justice. The role of a Public Prosecutor is inside the Court, whereas investigation is outside the Court. Normally the role of a Public Prosecutor commences after the investigating agency presents the case in the Court on culmination of investigation. Its exception is that the Public Prosecutor may have to deal with bail applications moved by the parties concerned at any stage. Involving the Public Prosecutor in investigation is injudicious as well as pernicious in law. At any rate no investigating agency can be compelled to seek the opinion of a Public Prosecutor under the orders of the Court." 16. The above discussion was made for emphasising the need for official investigation to be totally extricated from any extraneous influence. The police investigation should necessarily be with the fund supplied by the State. It may be possible for a rich complainant to supply any amount of fund to the police for conducting investigation into his complaint. But a poor man cannot afford to supply any financial assistance to the police. It is an acknowledged reality that he who pays the piper calls the tune. So he would call the shots. Its corollary is that somebody who incurs the cost of anything would normally secure its control also. In our constitutional scheme, the police and other statutory investigating agency cannot be allowed to be hackneyed by those who can afford it. All complaints shall be investigated with equal alacrity and with equal fairness irrespective of the financial capacity of the person lodging the complaint.17. Financial crunch of any State treasury is no justification for allowing a private party to supply funds to the police for conducting such investigation. Augmentation of the fiscal resources of the State for meeting the expenses needed for such investigations is the look out of the executive. Failure to do it is no premise for directing a complainant to supply funds to the investigating officer. Such funding by interested private parties would vitiate the investigation contemplated in the Code. A vitiated investigation is the precursor for miscarriage of criminal justice. Hence any attempt, to create a precedent permitting private parties to supply financial assistance to the police for conducting investigation, should be nipped in the bud itself. No such precedent can secure judicial imprimatur. | 1[ds]16. The above discussion was made for emphasising the need for official investigation to be totally extricated from any extraneous influence. The police investigation should necessarily be with the fund supplied by the State. It may be possible for a rich complainant to supply any amount of fund to the police for conducting investigation into his complaint. But a poor man cannot afford to supply any financial assistance to the police. It is an acknowledged reality that he who pays the piper calls the tune. So he would call the shots. Its corollary is that somebody who incurs the cost of anything would normally secure its control also. In our constitutional scheme, the police and other statutory investigating agency cannot be allowed to be hackneyed by those who can afford it. All complaints shall be investigated with equal alacrity and with equal fairness irrespective of the financial capacity of the person lodging the complaint.17. Financial crunch of any State treasury is no justification for allowing a private party to supply funds to the police for conducting such investigation. Augmentation of the fiscal resources of the State for meeting the expenses needed for such investigations is the look out of the executive. Failure to do it is no premise for directing a complainant to supply funds to the investigating officer. Such funding by interested private parties would vitiate the investigation contemplated in the Code. A vitiated investigation is the precursor for miscarriage of criminal justice. Hence any attempt, to create a precedent permitting private parties to supply financial assistance to the police for conducting investigation, should be nipped in the bud itself. No such precedent can secure judicial imprimatur. | 1 | 2,507 | 304 | ### 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 spot; (2) ascertainment of the facts and circumstances of the case; (3) discovery and arrest of the suspected offender; (4) collection of evidence relating to the commission of the offence which may consist of - (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial; and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a magistrate for trial and, if so, taking the necessary steps for the same by the filling of a charge-sheet under Section 173." (vide H.N. Rishbud v. State of Delhi, AIR 1955 SC 196 and State of Madhya Pradesh v. Mubarak Ali, AIR 1959 SC 707 ). 11. All the above duties are conferred by the statute on the police and they shall be carried out as they are statutory duties. The sublime idea behind formulating such steps for conducting investigation is to enable the statutory authority to independently carry out the investigation without being influenced by any of the interested parties. Investigation must not only be fair but impartial and the conclusion reached by them should be unbiased. 12. A Division Bench of the Madras High Court had pointed to that object of the statutory investigation in re Muddamma Malla Reddy, 1954 Crl. L.J. 167 through the following observations : "The investigating police are primarily the guardians of the liberty of innocent persons. A heavy responsibility devolves on them of seeing that innocent persons are not charged on irresponsible and false implication. There is a duty cast on the investigating police to scrutinize a first complaint in which number of persons are implicated with rigorous care and to refrain from building up a case on its basis unless satisfied of its truth." 13. In Sirajjuddin v. State of Madras, 1970(3) SCR 931 this Court said thus, after referring to various provisions in the Code dealing with investigation : "All the above provisions of the Code are aimed at securing a fair investigation into the facts and circumstances of the criminal case; however serious the crime and howsoever incriminating the circumstances may be against a person supposed to be guilty of a crime the Code of Criminal Procedure aims at securing a conviction if it can be had by the use of utmost fairness on the part of the officers investigating the crime before the lodging of a charge-sheet. Clearly the idea is that no one should be put to the harassment of a criminal trial unless there are good and substantial reasons for holding it." 14. The said observations were followed by this Court in State of Rajasthan v. Gurcharandas Chadha, 1980(1) SCC 250. 15. The Code does not recognise private investigating agency. If any person is interested in hiring any such private agency, he may do so at his own risk and cost, but such investigation would not be regarded as investigation made under law. Any evidence collected in such private investigation and any conclusion reached by such investigators cannot be presented by Public Prosecutor in any trial. Of course it may be possible for the defence to present such evidence. In this context, we may refer to a recent decision of this Court R. Sarala v. T.S. Velu, 2000(2) RCR (Crl.) 637 : 2000(4) SCC 459. This Court said that even a Public Prosecutor cannot be officially involved during the stage of investigation. The following observations made by this Court in the said decision will be useful : "Investigation and prosecution are two different facets in the administration of criminal justice. The role of a Public Prosecutor is inside the Court, whereas investigation is outside the Court. Normally the role of a Public Prosecutor commences after the investigating agency presents the case in the Court on culmination of investigation. Its exception is that the Public Prosecutor may have to deal with bail applications moved by the parties concerned at any stage. Involving the Public Prosecutor in investigation is injudicious as well as pernicious in law. At any rate no investigating agency can be compelled to seek the opinion of a Public Prosecutor under the orders of the Court." 16. The above discussion was made for emphasising the need for official investigation to be totally extricated from any extraneous influence. The police investigation should necessarily be with the fund supplied by the State. It may be possible for a rich complainant to supply any amount of fund to the police for conducting investigation into his complaint. But a poor man cannot afford to supply any financial assistance to the police. It is an acknowledged reality that he who pays the piper calls the tune. So he would call the shots. Its corollary is that somebody who incurs the cost of anything would normally secure its control also. In our constitutional scheme, the police and other statutory investigating agency cannot be allowed to be hackneyed by those who can afford it. All complaints shall be investigated with equal alacrity and with equal fairness irrespective of the financial capacity of the person lodging the complaint.17. Financial crunch of any State treasury is no justification for allowing a private party to supply funds to the police for conducting such investigation. Augmentation of the fiscal resources of the State for meeting the expenses needed for such investigations is the look out of the executive. Failure to do it is no premise for directing a complainant to supply funds to the investigating officer. Such funding by interested private parties would vitiate the investigation contemplated in the Code. A vitiated investigation is the precursor for miscarriage of criminal justice. Hence any attempt, to create a precedent permitting private parties to supply financial assistance to the police for conducting investigation, should be nipped in the bud itself. No such precedent can secure judicial imprimatur.
### Response:
1
### Explanation:
16. The above discussion was made for emphasising the need for official investigation to be totally extricated from any extraneous influence. The police investigation should necessarily be with the fund supplied by the State. It may be possible for a rich complainant to supply any amount of fund to the police for conducting investigation into his complaint. But a poor man cannot afford to supply any financial assistance to the police. It is an acknowledged reality that he who pays the piper calls the tune. So he would call the shots. Its corollary is that somebody who incurs the cost of anything would normally secure its control also. In our constitutional scheme, the police and other statutory investigating agency cannot be allowed to be hackneyed by those who can afford it. All complaints shall be investigated with equal alacrity and with equal fairness irrespective of the financial capacity of the person lodging the complaint.17. Financial crunch of any State treasury is no justification for allowing a private party to supply funds to the police for conducting such investigation. Augmentation of the fiscal resources of the State for meeting the expenses needed for such investigations is the look out of the executive. Failure to do it is no premise for directing a complainant to supply funds to the investigating officer. Such funding by interested private parties would vitiate the investigation contemplated in the Code. A vitiated investigation is the precursor for miscarriage of criminal justice. Hence any attempt, to create a precedent permitting private parties to supply financial assistance to the police for conducting investigation, should be nipped in the bud itself. No such precedent can secure judicial imprimatur.
|
Yashchandra (D) By Lrs Vs. The State Of Madhya Pradesh | admitted case of the parties that Yashchandra was related to Phoolchand. Yashchandra filed a petition before the competent authority under the Act claiming that he was an occupancy tenant on the eastern part of the land of Phoolchand measuring 25 acres and claimed that this land had been leased out to him vide lease deed dated 21st November, 1968 on a rental of Rs. 500/- per annum. He further claimed that since he was in occupation of the land he had got the rights of occupancy tenant under Section 169 of the Madhya Pradesh Land Revenue Code, 1959 (hereinafter referred to as `the Code). The competent authority rejected the objections and declared 20.88 acres of land of Phoolchand as surplus under the Act. 4. Thereafter, Yashchandra filed a suit for declaration of his occupancy rights in the suit land on the same grounds. In this suit he claimed that Phoolchand had transferred 24 acres of land to him in 1968. In this suit a written statement was filed and in the written statement the State denied that Phoolchand had created any lease in favour of Yashchandra. However, it was admitted that the plaintiff was in cultivating possession of the land. The State, however, took the plea that the alleged transaction of lease is a sham transaction set up with an intention to defeat the provisions of the Act. Phoolchand was defendant in the suit but did not contest the same. He did not file any written statement. The trial court dismissed the suit. Yashchandra filed an appeal and the first appellate court allowed the appeal mainly on the ground that a lease was created by the document in question and, as such, the plaintiff had obtained occupancy rights. An appeal was filed by the State and the High Court came to the conclusion that the alleged deed was a sham transaction. It relied upon the evidence of the plaintiff himself to come to the conclusion that the plaintiff was not in possession of the land. This judgment is challenged before us. 5. Shri Puneet Jain, learned counsel for the appellants has basically raised two issues- the first is that since the transaction in question is of the year 1968, the competent authority had no jurisdiction to invalidate the same either under the un-amended provisions of the Act or under the amended provisions of the Act. He submits that when the transaction took place, the holding of Phoolchand was less than the maximum prescribed limit and such a transfer was permissible under section 4(2) of the Act. He further submits that after the Amendment Act of 1972, the competent authority could only look into the validity of those documents or transactions which had been entered into after 24th January, 1971.6. This argument seems attractive on first blush. However, when we carefully peruse the original document, we notice that by this document [Annexure P-2] Phoolchand states that he has received Rs. 2000/- from Yashchandra and that he has permitted Yashchandra to enclose and cultivate 1/3rd of his land measuring 24 acres and cultivate the same and only Rs. 500/- would be deducted. Even after payment of the full amount of Rs. 2000/-, Yashchandra would be entitled to cultivate the land for a period of 10 years. This document is signed only by Phoolchand and it is neither witnessed by anybody nor registered. This document transfers an interest in immovable property of more than rupees hundred. It may be true that under the provisions of the Code oral leases of agricultural holdings are permissible, but once the lease is created by a document then the same has to be registered under the Registration Act. This document is an unregistered document. The courts below have come to the conclusion that this document is an ante-dated document. Therefore, this document cannot be looked into for deciding whether this document creates any right, title or interest in the appellants. In our view, in the absence of any registration or any attesting witness, the document could have easily been manipulated by Phoolchand and the plaintiff by ante-dating it. 7. The second issue raised by Shri Puneet Jain, learned counsel for the appellants is that the aforesaid document can be looked into for the collateral purpose for deciding the possession of the plaintiff. In this regard, Shri Jain, learned counsel also relied upon the written statement wherein it is mentioned that the cultivating possession of the plaintiff is admitted. No doubt, this one sentence in the written statement gives the impression that possession of the plaintiff is admitted, but if we read the written statement as a whole we find that the stand of the State is that the document is a sham document, at best a mortgage deed and the possession of the plaintiff is in the nature of a mortgagee. 8. One of the issues framed was whether the plaintiff had become a cultivating farmer of the land in question and while answering this issue the trial court has discussed the question whether the plaintiff was in possession of the land or not. It has been found that the plaintiff was not in possession of the land. In fact, the plaintiff himself had admitted that he is not in possession of the land and cultivation on his behalf is carried out by a servant. It was also stated that one relative was managing the cultivation of the land. The trial court held that the plaintiff had failed to prove that he was in possession because he failed to mention the name of the persons who were owning the neighbouring lands nor could he give any details thereof. The servant Buda and the relative Amlok Chand were not examined by the plaintiff. Therefore, even as per the stand of the plaintiff he was not in personal cultivating possession and hence, he could not have got occupancy rights of a tenant in the land which can only be given to a person who is actually cultivating the land. | 0[ds]6. This argument seems attractive on first blush. However, when we carefully peruse the original document, we notice that by this document [Annexure] Phoolchand states that he has received Rs. 2000/from Yashchandra and that he has permitted Yashchandra to enclose and cultivate 1/3rd of his land measuring 24 acres and cultivate the same and only Rs. 500/would be deducted. Even after payment of the full amount of Rs., Yashchandra would be entitled to cultivate the land for a period of 10 years. This document is signed only by Phoolchand and it is neither witnessed by anybody nor registered. This document transfers an interest in immovable property of more than rupees hundred. It may be true that under the provisions of the Code oral leases of agricultural holdings are permissible, but once the lease is created by a document then the same has to be registered under the Registration Act. This document is an unregistered document. The courts below have come to the conclusion that this document is and document. Therefore, this document cannot be looked into for deciding whether this document creates any right, title or interest in the appellants. In our view, in the absence of any registration or any attesting witness, the document could have easily been manipulated by Phoolchand and the plaintiff byNo doubt, this one sentence in the written statement gives the impression that possession of the plaintiff is admitted, but if we read the written statement as a whole we find that the stand of the State is that the document is a sham document, at best a mortgage deed and the possession of the plaintiff is in the nature of a mortgageeIt has been found that the plaintiff was not in possession of the land. In fact, the plaintiff himself had admitted that he is not in possession of the land and cultivation on his behalf is carried out by a servant. It was also stated that one relative was managing the cultivation of the land. The trial court held that the plaintiff had failed to prove that he was in possession because he failed to mention the name of the persons who were owning the neighbouring lands nor could he give any details thereof. The servant Buda and the relative Amlok Chand were not examined by the plaintiff. Therefore, even as per the stand of the plaintiff he was not in personal cultivating possession and hence, he could not have got occupancy rights of a tenant in the land which can only be given to a person who is actually cultivating the land. | 0 | 1,627 | 469 | ### 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:
admitted case of the parties that Yashchandra was related to Phoolchand. Yashchandra filed a petition before the competent authority under the Act claiming that he was an occupancy tenant on the eastern part of the land of Phoolchand measuring 25 acres and claimed that this land had been leased out to him vide lease deed dated 21st November, 1968 on a rental of Rs. 500/- per annum. He further claimed that since he was in occupation of the land he had got the rights of occupancy tenant under Section 169 of the Madhya Pradesh Land Revenue Code, 1959 (hereinafter referred to as `the Code). The competent authority rejected the objections and declared 20.88 acres of land of Phoolchand as surplus under the Act. 4. Thereafter, Yashchandra filed a suit for declaration of his occupancy rights in the suit land on the same grounds. In this suit he claimed that Phoolchand had transferred 24 acres of land to him in 1968. In this suit a written statement was filed and in the written statement the State denied that Phoolchand had created any lease in favour of Yashchandra. However, it was admitted that the plaintiff was in cultivating possession of the land. The State, however, took the plea that the alleged transaction of lease is a sham transaction set up with an intention to defeat the provisions of the Act. Phoolchand was defendant in the suit but did not contest the same. He did not file any written statement. The trial court dismissed the suit. Yashchandra filed an appeal and the first appellate court allowed the appeal mainly on the ground that a lease was created by the document in question and, as such, the plaintiff had obtained occupancy rights. An appeal was filed by the State and the High Court came to the conclusion that the alleged deed was a sham transaction. It relied upon the evidence of the plaintiff himself to come to the conclusion that the plaintiff was not in possession of the land. This judgment is challenged before us. 5. Shri Puneet Jain, learned counsel for the appellants has basically raised two issues- the first is that since the transaction in question is of the year 1968, the competent authority had no jurisdiction to invalidate the same either under the un-amended provisions of the Act or under the amended provisions of the Act. He submits that when the transaction took place, the holding of Phoolchand was less than the maximum prescribed limit and such a transfer was permissible under section 4(2) of the Act. He further submits that after the Amendment Act of 1972, the competent authority could only look into the validity of those documents or transactions which had been entered into after 24th January, 1971.6. This argument seems attractive on first blush. However, when we carefully peruse the original document, we notice that by this document [Annexure P-2] Phoolchand states that he has received Rs. 2000/- from Yashchandra and that he has permitted Yashchandra to enclose and cultivate 1/3rd of his land measuring 24 acres and cultivate the same and only Rs. 500/- would be deducted. Even after payment of the full amount of Rs. 2000/-, Yashchandra would be entitled to cultivate the land for a period of 10 years. This document is signed only by Phoolchand and it is neither witnessed by anybody nor registered. This document transfers an interest in immovable property of more than rupees hundred. It may be true that under the provisions of the Code oral leases of agricultural holdings are permissible, but once the lease is created by a document then the same has to be registered under the Registration Act. This document is an unregistered document. The courts below have come to the conclusion that this document is an ante-dated document. Therefore, this document cannot be looked into for deciding whether this document creates any right, title or interest in the appellants. In our view, in the absence of any registration or any attesting witness, the document could have easily been manipulated by Phoolchand and the plaintiff by ante-dating it. 7. The second issue raised by Shri Puneet Jain, learned counsel for the appellants is that the aforesaid document can be looked into for the collateral purpose for deciding the possession of the plaintiff. In this regard, Shri Jain, learned counsel also relied upon the written statement wherein it is mentioned that the cultivating possession of the plaintiff is admitted. No doubt, this one sentence in the written statement gives the impression that possession of the plaintiff is admitted, but if we read the written statement as a whole we find that the stand of the State is that the document is a sham document, at best a mortgage deed and the possession of the plaintiff is in the nature of a mortgagee. 8. One of the issues framed was whether the plaintiff had become a cultivating farmer of the land in question and while answering this issue the trial court has discussed the question whether the plaintiff was in possession of the land or not. It has been found that the plaintiff was not in possession of the land. In fact, the plaintiff himself had admitted that he is not in possession of the land and cultivation on his behalf is carried out by a servant. It was also stated that one relative was managing the cultivation of the land. The trial court held that the plaintiff had failed to prove that he was in possession because he failed to mention the name of the persons who were owning the neighbouring lands nor could he give any details thereof. The servant Buda and the relative Amlok Chand were not examined by the plaintiff. Therefore, even as per the stand of the plaintiff he was not in personal cultivating possession and hence, he could not have got occupancy rights of a tenant in the land which can only be given to a person who is actually cultivating the land.
### Response:
0
### Explanation:
6. This argument seems attractive on first blush. However, when we carefully peruse the original document, we notice that by this document [Annexure] Phoolchand states that he has received Rs. 2000/from Yashchandra and that he has permitted Yashchandra to enclose and cultivate 1/3rd of his land measuring 24 acres and cultivate the same and only Rs. 500/would be deducted. Even after payment of the full amount of Rs., Yashchandra would be entitled to cultivate the land for a period of 10 years. This document is signed only by Phoolchand and it is neither witnessed by anybody nor registered. This document transfers an interest in immovable property of more than rupees hundred. It may be true that under the provisions of the Code oral leases of agricultural holdings are permissible, but once the lease is created by a document then the same has to be registered under the Registration Act. This document is an unregistered document. The courts below have come to the conclusion that this document is and document. Therefore, this document cannot be looked into for deciding whether this document creates any right, title or interest in the appellants. In our view, in the absence of any registration or any attesting witness, the document could have easily been manipulated by Phoolchand and the plaintiff byNo doubt, this one sentence in the written statement gives the impression that possession of the plaintiff is admitted, but if we read the written statement as a whole we find that the stand of the State is that the document is a sham document, at best a mortgage deed and the possession of the plaintiff is in the nature of a mortgageeIt has been found that the plaintiff was not in possession of the land. In fact, the plaintiff himself had admitted that he is not in possession of the land and cultivation on his behalf is carried out by a servant. It was also stated that one relative was managing the cultivation of the land. The trial court held that the plaintiff had failed to prove that he was in possession because he failed to mention the name of the persons who were owning the neighbouring lands nor could he give any details thereof. The servant Buda and the relative Amlok Chand were not examined by the plaintiff. Therefore, even as per the stand of the plaintiff he was not in personal cultivating possession and hence, he could not have got occupancy rights of a tenant in the land which can only be given to a person who is actually cultivating the land.
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STATE OF ORISSA Vs. MAMATA SAHOO | BANUMATHI, J.1. Leave granted.2. This appeal arises out of judgment and order dated 29.06.2017 passed by the High Court of Orissa, Cuttack, in CRLMC No.4845 of 2014 in and by which the High Court has quashed the summoning order issued against the respondents and also the complaint filed against them under Sections 23 and 25 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short, ?PC and PNDT Act?).3. Briefly stated case of the prosecution is that on 28.05.2014 at 11:00 a.m., a joint inspection was conducted by the State and District team, Dhenkanal, in Ultrasound Unit of Shri Jagannath Hospital. It was found that the respondents had violated the provisions under Sections 3(2), 5 and 29 of the PC and PNDT Act which is punishable under Sections 23 and 25 of the said Act. For violation of PC and PNDT Act and Rule, the authorized officer of the Collector-cum-District Appropriate Authority, Dhenkanal, seized the ultrasound machine and other equipments from the said clinic. For such violation, the registration of ultrasound clinic of the respondents has been suspended vide order of the Collector dated 18.06.2014. A complaint was filed against the accused-respondent under Section 28(2) of the PC and PNDT Act. The Trial Court took cognizance of offences punishable under Sections 3(2), 5, 29, 23 and 25 of the PC and PNDT Act and issued summons to the respondents.4. Aggrieved by the issuance of the summons, the respondents filed the quash petition before the High Court under Section 482 of the Cr.P.C. to quash the said proceedings initiated against them on the ground that (i) Inspection was conducted by the Tehsildar on 28.05.2014 without any authorisation/authority; (ii) The District Magistrate is an Appropriate Authority under the PC and PNDT Act and as per the Office Memorandum No.19077/H of the Health and Family Welfare Department dated 27.07.2007, the District Magistrate cannot delegate its authority under the PC and PNDT Act and, therefore, the entire proceedings is not sustainable in law.5. The High Court quashed the proceedings initiated against the respondents on the ground that authorisation had not been granted by the District Magistrate-District Appropriate Authority, Dhenkanal, on 18.06.2014 for filing the complaint; but the inspection was conducted on 28.05.2014. The High Court held that on the date of inspection conducted by the Tehsildar, he had no authority to conduct the inspection. Referring to the Office Memorandum dated 27.07.2007, the High Court held that the District Magistrate-District Appropriate Authority may nominate the Executive Magistrate of the District only to assist him in monitoring and implementation of the PC and PNDT Act and cannot delegate the entire authority. On those findings, the High Court quashed the proceedings against the respondents as not sustainable in law.6. We have heard Ms. Anindita Pujari, learned counsel appearing for the appellant-State and Mr. Manish Mohan, learned counsel appearing for the respondents and also perused the impugned judgment and the evidence/materials on record.7. As per Section 28(1)(a) of the PC and PNDT Act cognizance can be taken only on a complaint made by the Appropriate Authority concerned. Section 28(1)(a) thereof reads as under:"28. Cognizance of offences.- (1) No court shall take cognizance of an offence under this Act except on a complaint made by - (a) the Appropriate Authority concerned, or any officer authorised in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority;As per Office Memorandum of the Health and Family Welfare Department dated 27.07.2007, the District Magistrate of each District is appointed as ?District Appropriate Authority? for the each District under the PC and PNDT Act. As per the said Office Memorandum, the District Magistrate-District Appropriate Authority may nominate the Executive Magistrate of the District as his/her nominee to assist him/her in monitoring the implementation of the PC and PNDT Act as deemed necessary. Additionally, Sub-Divisional Magistrate (Sub-Collector) of each Sub-Division is also appointed as an ?Appropriate Authority? for the Sub-District/Sub-Division for strict implementation of the provisions under this Act. This is by virtue of the above Office Memorandum, the Executive Magistrate-Tehsildar has been nominated to assist the District Appropriate Authority-District Magistrate in monitoring the implementation of PC and PNDT Act. In the light of the above Office Memorandum, in our view, it cannot be said that the inspection conducted on 28.05.2014 is without authority/authorisation.8. Ms. Anindita Pujari, learned counsel appearing for the appellant-State, has drawn our attention to Order No.388 dated 27.05.2014 as per which the Collector-District Magistrate-cum- District Appropriate Authority is said to have authorised the Tehsildar/Executive Magistrate, Dhenkanal, to inspect the clinic of the respondents on 28.05.2014 and to take appropriate legal action. It was pointed out that the said Order No.388 dated 27.05.2014 has also been referred to in the complaint filed before the Court of the Magistrate. It was submitted that the High Court did not keep in view this authorisation dated 27.05.2014 authorising the Tehsildar to make the inspection of the respondents? hospital on 28.05.2014.9. Mr. Manish Mohan, learned counsel appearing for the respondents, has submitted that absolutely there was no mention about the said Order dated 27.05.2014 in the counter filed by the Chief District Medical Officer, Dhenkanal, before the High Court. Mr. Manish Mohan has also raised doubts regarding the correctness of the said Order dated 27.05.2014 and submitted that the said order has not been shown to the respondents at the time of the inspection.10. Order dated 27.05.2014 has been mentioned in the complaint itself. However, the said order has not been taken note of by the High Court as it was not mentioned in the counter. We are not inclined to go into the merits of the rival contentions raised by the parties. Suffice to note that it is for the Trial Court to examine the correctness of the said Order No.388 dated 27.05.2014 | 1[ds]As per Office Memorandum of the Health and Family Welfare Department dated 27.07.2007, the District Magistrate of each District is appointed as ?District Appropriate Authority? for the each District under the PC and PNDT Act. As per the said Office Memorandum, the District Magistrate-District Appropriate Authority may nominate the Executive Magistrate of the District as his/her nominee to assist him/her in monitoring the implementation of the PC and PNDT Act as deemed necessary. Additionally, Sub-Divisional Magistrate (Sub-Collector) of each Sub-Division is also appointed as an ?Appropriate Authority? for the Sub-District/Sub-Division for strict implementation of the provisions under this Act. This is by virtue of the above Office Memorandum, the Executive Magistrate-Tehsildar has been nominated to assist the District Appropriate Authority-District Magistrate in monitoring the implementation of PC and PNDT Act. In the light of the above Office Memorandum, in our view, it cannot be said that the inspection conducted on 28.05.2014 is without authority/authorisation.Order dated 27.05.2014 has been mentioned in the complaint itself. However, the said order has not been taken note of by the High Court as it was not mentioned in the counter. We are not inclined to go into the merits of the rival contentions raised by the parties. Suffice to note that it is for the Trial Court to examine the correctness of the said Order No.388 dated 27.05.2014 | 1 | 1,101 | 248 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
BANUMATHI, J.1. Leave granted.2. This appeal arises out of judgment and order dated 29.06.2017 passed by the High Court of Orissa, Cuttack, in CRLMC No.4845 of 2014 in and by which the High Court has quashed the summoning order issued against the respondents and also the complaint filed against them under Sections 23 and 25 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short, ?PC and PNDT Act?).3. Briefly stated case of the prosecution is that on 28.05.2014 at 11:00 a.m., a joint inspection was conducted by the State and District team, Dhenkanal, in Ultrasound Unit of Shri Jagannath Hospital. It was found that the respondents had violated the provisions under Sections 3(2), 5 and 29 of the PC and PNDT Act which is punishable under Sections 23 and 25 of the said Act. For violation of PC and PNDT Act and Rule, the authorized officer of the Collector-cum-District Appropriate Authority, Dhenkanal, seized the ultrasound machine and other equipments from the said clinic. For such violation, the registration of ultrasound clinic of the respondents has been suspended vide order of the Collector dated 18.06.2014. A complaint was filed against the accused-respondent under Section 28(2) of the PC and PNDT Act. The Trial Court took cognizance of offences punishable under Sections 3(2), 5, 29, 23 and 25 of the PC and PNDT Act and issued summons to the respondents.4. Aggrieved by the issuance of the summons, the respondents filed the quash petition before the High Court under Section 482 of the Cr.P.C. to quash the said proceedings initiated against them on the ground that (i) Inspection was conducted by the Tehsildar on 28.05.2014 without any authorisation/authority; (ii) The District Magistrate is an Appropriate Authority under the PC and PNDT Act and as per the Office Memorandum No.19077/H of the Health and Family Welfare Department dated 27.07.2007, the District Magistrate cannot delegate its authority under the PC and PNDT Act and, therefore, the entire proceedings is not sustainable in law.5. The High Court quashed the proceedings initiated against the respondents on the ground that authorisation had not been granted by the District Magistrate-District Appropriate Authority, Dhenkanal, on 18.06.2014 for filing the complaint; but the inspection was conducted on 28.05.2014. The High Court held that on the date of inspection conducted by the Tehsildar, he had no authority to conduct the inspection. Referring to the Office Memorandum dated 27.07.2007, the High Court held that the District Magistrate-District Appropriate Authority may nominate the Executive Magistrate of the District only to assist him in monitoring and implementation of the PC and PNDT Act and cannot delegate the entire authority. On those findings, the High Court quashed the proceedings against the respondents as not sustainable in law.6. We have heard Ms. Anindita Pujari, learned counsel appearing for the appellant-State and Mr. Manish Mohan, learned counsel appearing for the respondents and also perused the impugned judgment and the evidence/materials on record.7. As per Section 28(1)(a) of the PC and PNDT Act cognizance can be taken only on a complaint made by the Appropriate Authority concerned. Section 28(1)(a) thereof reads as under:"28. Cognizance of offences.- (1) No court shall take cognizance of an offence under this Act except on a complaint made by - (a) the Appropriate Authority concerned, or any officer authorised in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority;As per Office Memorandum of the Health and Family Welfare Department dated 27.07.2007, the District Magistrate of each District is appointed as ?District Appropriate Authority? for the each District under the PC and PNDT Act. As per the said Office Memorandum, the District Magistrate-District Appropriate Authority may nominate the Executive Magistrate of the District as his/her nominee to assist him/her in monitoring the implementation of the PC and PNDT Act as deemed necessary. Additionally, Sub-Divisional Magistrate (Sub-Collector) of each Sub-Division is also appointed as an ?Appropriate Authority? for the Sub-District/Sub-Division for strict implementation of the provisions under this Act. This is by virtue of the above Office Memorandum, the Executive Magistrate-Tehsildar has been nominated to assist the District Appropriate Authority-District Magistrate in monitoring the implementation of PC and PNDT Act. In the light of the above Office Memorandum, in our view, it cannot be said that the inspection conducted on 28.05.2014 is without authority/authorisation.8. Ms. Anindita Pujari, learned counsel appearing for the appellant-State, has drawn our attention to Order No.388 dated 27.05.2014 as per which the Collector-District Magistrate-cum- District Appropriate Authority is said to have authorised the Tehsildar/Executive Magistrate, Dhenkanal, to inspect the clinic of the respondents on 28.05.2014 and to take appropriate legal action. It was pointed out that the said Order No.388 dated 27.05.2014 has also been referred to in the complaint filed before the Court of the Magistrate. It was submitted that the High Court did not keep in view this authorisation dated 27.05.2014 authorising the Tehsildar to make the inspection of the respondents? hospital on 28.05.2014.9. Mr. Manish Mohan, learned counsel appearing for the respondents, has submitted that absolutely there was no mention about the said Order dated 27.05.2014 in the counter filed by the Chief District Medical Officer, Dhenkanal, before the High Court. Mr. Manish Mohan has also raised doubts regarding the correctness of the said Order dated 27.05.2014 and submitted that the said order has not been shown to the respondents at the time of the inspection.10. Order dated 27.05.2014 has been mentioned in the complaint itself. However, the said order has not been taken note of by the High Court as it was not mentioned in the counter. We are not inclined to go into the merits of the rival contentions raised by the parties. Suffice to note that it is for the Trial Court to examine the correctness of the said Order No.388 dated 27.05.2014
### Response:
1
### Explanation:
As per Office Memorandum of the Health and Family Welfare Department dated 27.07.2007, the District Magistrate of each District is appointed as ?District Appropriate Authority? for the each District under the PC and PNDT Act. As per the said Office Memorandum, the District Magistrate-District Appropriate Authority may nominate the Executive Magistrate of the District as his/her nominee to assist him/her in monitoring the implementation of the PC and PNDT Act as deemed necessary. Additionally, Sub-Divisional Magistrate (Sub-Collector) of each Sub-Division is also appointed as an ?Appropriate Authority? for the Sub-District/Sub-Division for strict implementation of the provisions under this Act. This is by virtue of the above Office Memorandum, the Executive Magistrate-Tehsildar has been nominated to assist the District Appropriate Authority-District Magistrate in monitoring the implementation of PC and PNDT Act. In the light of the above Office Memorandum, in our view, it cannot be said that the inspection conducted on 28.05.2014 is without authority/authorisation.Order dated 27.05.2014 has been mentioned in the complaint itself. However, the said order has not been taken note of by the High Court as it was not mentioned in the counter. We are not inclined to go into the merits of the rival contentions raised by the parties. Suffice to note that it is for the Trial Court to examine the correctness of the said Order No.388 dated 27.05.2014
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THE BRANCH MANAGER NATIONAL INSURANCE CO. LTD Vs. MOUSUMI BHATTACHARJEE | for instance, injuries by disease or injuries self-inflicted by design.” The Court of appeal followed this decision in Steel v Cammel, Laird & Co. (1905) 2 K.B. 232 , Cozens Hardy L.J. observed: “The doctor called as a witness by the workman said that the paralysis was an “occupation” disease, which he should expect in a certain number of cases to follow on the work on which the workman was engaged. It was not unforeseen; it was not unexpected…Injury by disease alone, not accompanied by an accident, is expressly excluded, as pointed out by Lord Macnaughten in Fenton v Thorley & Co.” (emphasis supplied) 17. In Co-operators Life Insurance Company v Randolph Charles Gibbens 2009 SCC 59 , the Supreme Court of Canada was tasked with determining whether contracting a rare complication of herpes that resulted in paralysis caused due to engagement in unprotected sex would be covered under the definition of ‘accident’. The Court held thus: “59. In the present case the evidence is that genital herpes is a sexually transmitted virus that spreads by sexual intercourse. Sex is its normal method of transmission. As such, unlike for example an internally developing condition leading to an aneurysm, its transmission requires an outsider’s participation. But the same could be said of infectious diseases generally. Viruses and bacteria pass, directly or indirectly, from person to person, and occasionally across species. In the “ordinary language of the people”, an individual would not say on coming down with influenza that “I had an accident”. We come down with the flu “in the ordinary course of events.”(emphasis supplied) 18. As the law of insurance has developed, there has been a nuanced understanding of the distinction between an accident and a disease which is contracted in the natural course of human events in determining whether a policy of accident insurance would cover a disease. At one end of the spectrum is the theory that an accident postulates a mishap or an untoward happening, something which is unexpected and unforeseen. This understanding of what is an accident indicates that something which arises in the natural course of things is not an accident. This is the basis for holding that a disease may not fall for classification as an accident, when it is caused by a bodily infirmity or a condition. A person who suffers from flu or a viral fever cannot say that it is an accident. Of course, there is an element of chance or probability in contracting any illness. Even when viral disease has proliferated in an area, every individual may not suffer from it. Getting a bout of flu or a viral illness may be a matter of chance. But a person who gets the flu cannot be described as having suffered an accident: the flu was transmitted in the natural course of things. To be bitten by a mosquito and be imbued with a malarial parasite does involve an element of chance. But the disease which is caused as a result of the insect bite in the natural course of events cannot be regarded as an accident. Particularly, when the disease is caused in an area which is malaria prone. On the other hand, there may well be instances where a bodily condition from which an individual suffers may be the direct consequence of an accident. A motor car accident may, for instance, result in bodily injuries, the consequence of which is death or disability which may fall within the cover of a policy of accident insurance. Hence, it has been postulated that where a disease is caused or transmitted in the natural course of events, it would not be covered by the definition of an accident. However, in a given case or circumstance, the affliction or bodily condition may be regarded as an accident where its cause or course of transmission is unexpected and unforeseen.19. Recently, in Gloria Wells v Minnesota Life Insurance Company No. 16-20831 (5th Cir. 2018) , the United States Court of Appeals, Fifth Circuit, dealt with a case where the question of law before the court was whether death caused by a bite of a mosquito carrying West Nile Encephalitis virus in Texas was covered under an accidental death insurance policy. The Court while remanding the case to the lower court on the disputed issue of facts, observed that the determinate, single act of a mosquito bite was not incidental to a body process and the mosquito, an external force produced an unforeseen result. However, this may be distinguished from the facts in the present case. Malaria is most commonly transmitted to humans through malaria virus infested mosquito bites, and when a virus is contracted through normal means brought about by everyday life it cannot be deemed to be an unexpected or unforeseen accident.20. In a policy of insurance which covers death due to accident, the peril insured against is an accident: an untoward happening or occurrence which is unforeseen and unexpected in the normal course of human events. The death of the insured in the present case was caused by encephalitis malaria. The claim under the policy is founded on the hypothesis that there is an element of uncertainty about whether or when a person would be the victim of a mosquito bite which is a carrier of a vectorborne disease. The submission is that being bitten by a mosquito is an unforeseen eventuality and should be regarded as an accident. We do not agree with this submission. The insured was based in Mozambique. According to the World Health Organization’s World Malaria Report 2018, Mozambique, with a population of 29.6 million people, accounts for 5% of cases of malaria globally. It is also on record that one out of three people in Mozambique is afflicted with malaria. In light of these statistics, the illness of encephalitis malaria through a mosquito bite cannot be considered as an accident. It was neither unexpected nor unforeseen. It was not a peril insured against in the policy of accident insurance. | 1[ds]11. In our view, it would be appropriate to approach the issue which has been raised in the present case as a matter of interpreting the conditions contained in the insurance policy.In order to constitute an accident, the event must be in the nature of an occurrence which is unnatural, unforeseen or unexpected. The present case concerns death caused due to a disease being contracted. Section II of theinsurance policy covers death caused by accident. Death or injury from accident caused by insanity or venereal disease has been specifically excluded and not covered under the policy.treatises extracted above construe accidents and diseases as distinct concepts. Baker Welford regardsas a term which does not include disease in the ordinary course of events. Colinvaux acknowledges that a disease caused as a proximate cause of an accident will be covered by a policy for personal accident, in the absence of an exclusion. But then it is also argued that the term accident does not include disease. 15. Courts across international jurisdictions - including in the UK, US and Canada have interpreted the termThere is a fine distinction between the occurrence of a disease which may be considered as an accident and a disease which occurs in the ‘natural course ofIn 1861, theBench Division Sinclair v Maritime Passengers Assurance (1861) 3 E&E 478in the UK was called upon to consider whether a sunstroke suffered by a person while on board a ship in the course of performing his ordinary duties would amount to an accident.As the law of insurance has developed, there has been a nuanced understanding of the distinction between an accident and a disease which is contracted in the natural course of human events in determining whether a policy of accident insurance would cover a disease. At one end of the spectrum is the theory that an accident postulates a mishap or an untoward happening, something which is unexpected and unforeseen. This understanding of what is an accident indicates that something which arises in the natural course of things is not an accident. This is the basis for holding that a disease may not fall for classification as an accident, when it is caused by a bodily infirmity or a condition. A person who suffers from flu or a viral fever cannot say that it is an accident. Of course, there is an element of chance or probability in contracting any illness. Even when viral disease has proliferated in an area, every individual may not suffer from it. Getting a bout of flu or a viral illness may be a matter of chance. But a person who gets the flu cannot be described as having suffered an accident: the flu was transmitted in the natural course of things. To be bitten by a mosquito and be imbued with a malarial parasite does involve an element of chance. But the disease which is caused as a result of the insect bite in the natural course of events cannot be regarded as an accident. Particularly, when the disease is caused in an area which is malaria prone. On the other hand, there may well be instances where a bodily condition from which an individual suffers may be the direct consequence of an accident. A motor car accident may, for instance, result in bodily injuries, the consequence of which is death or disability which may fall within the cover of a policy of accident insurance. Hence, it has been postulated that where a disease is caused or transmitted in the natural course of events, it would not be covered by the definition of an accident. However, in a given case or circumstance, the affliction or bodily condition may be regarded as an accident where its cause or course of transmission is unexpected and unforeseen.19. Recently, in Gloria Wells v Minnesota Life Insurance Company No. 16-20831 (5th Cir. 2018) , the United States Court of Appeals, Fifth Circuit, dealt with a case where the question of law before the court was whether death caused by a bite of a mosquito carrying West Nile Encephalitis virus in Texas was covered under an accidental death insurance policy. The Court while remanding the case to the lower court on the disputed issue of facts, observed that the determinate, single act of a mosquito bite was not incidental to a body process and the mosquito, an external force produced an unforeseen result. However, this may be distinguished from the facts in the present case. Malaria is most commonly transmitted to humans through malaria virus infested mosquito bites, and when a virus is contracted through normal means brought about by everyday life it cannot be deemed to be an unexpected or unforeseen accident.20. In a policy of insurance which covers death due to accident, the peril insured against is an accident: an untoward happening or occurrence which is unforeseen and unexpected in the normal course of human events. The death of the insured in the present case was caused by encephalitis malaria. The claim under the policy is founded on the hypothesis that there is an element of uncertainty about whether or when a person would be the victim of a mosquito bite which is a carrier of a vectorborne disease. The submission is that being bitten by a mosquito is an unforeseen eventuality and should be regarded as an accident. We do not agree with this submission. The insured was based in Mozambique. According to the World HealthWorld Malaria Report 2018, Mozambique, with a population of 29.6 million people, accounts for 5% of cases of malaria globally. It is also on record that one out of three people in Mozambique is afflicted with malaria. In light of these statistics, the illness of encephalitis malaria through a mosquito bite cannot be considered as an accident. It was neither unexpected nor unforeseen. It was not a peril insured against in the policy of accident insurance. | 1 | 4,468 | 1,077 | ### 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:
for instance, injuries by disease or injuries self-inflicted by design.” The Court of appeal followed this decision in Steel v Cammel, Laird & Co. (1905) 2 K.B. 232 , Cozens Hardy L.J. observed: “The doctor called as a witness by the workman said that the paralysis was an “occupation” disease, which he should expect in a certain number of cases to follow on the work on which the workman was engaged. It was not unforeseen; it was not unexpected…Injury by disease alone, not accompanied by an accident, is expressly excluded, as pointed out by Lord Macnaughten in Fenton v Thorley & Co.” (emphasis supplied) 17. In Co-operators Life Insurance Company v Randolph Charles Gibbens 2009 SCC 59 , the Supreme Court of Canada was tasked with determining whether contracting a rare complication of herpes that resulted in paralysis caused due to engagement in unprotected sex would be covered under the definition of ‘accident’. The Court held thus: “59. In the present case the evidence is that genital herpes is a sexually transmitted virus that spreads by sexual intercourse. Sex is its normal method of transmission. As such, unlike for example an internally developing condition leading to an aneurysm, its transmission requires an outsider’s participation. But the same could be said of infectious diseases generally. Viruses and bacteria pass, directly or indirectly, from person to person, and occasionally across species. In the “ordinary language of the people”, an individual would not say on coming down with influenza that “I had an accident”. We come down with the flu “in the ordinary course of events.”(emphasis supplied) 18. As the law of insurance has developed, there has been a nuanced understanding of the distinction between an accident and a disease which is contracted in the natural course of human events in determining whether a policy of accident insurance would cover a disease. At one end of the spectrum is the theory that an accident postulates a mishap or an untoward happening, something which is unexpected and unforeseen. This understanding of what is an accident indicates that something which arises in the natural course of things is not an accident. This is the basis for holding that a disease may not fall for classification as an accident, when it is caused by a bodily infirmity or a condition. A person who suffers from flu or a viral fever cannot say that it is an accident. Of course, there is an element of chance or probability in contracting any illness. Even when viral disease has proliferated in an area, every individual may not suffer from it. Getting a bout of flu or a viral illness may be a matter of chance. But a person who gets the flu cannot be described as having suffered an accident: the flu was transmitted in the natural course of things. To be bitten by a mosquito and be imbued with a malarial parasite does involve an element of chance. But the disease which is caused as a result of the insect bite in the natural course of events cannot be regarded as an accident. Particularly, when the disease is caused in an area which is malaria prone. On the other hand, there may well be instances where a bodily condition from which an individual suffers may be the direct consequence of an accident. A motor car accident may, for instance, result in bodily injuries, the consequence of which is death or disability which may fall within the cover of a policy of accident insurance. Hence, it has been postulated that where a disease is caused or transmitted in the natural course of events, it would not be covered by the definition of an accident. However, in a given case or circumstance, the affliction or bodily condition may be regarded as an accident where its cause or course of transmission is unexpected and unforeseen.19. Recently, in Gloria Wells v Minnesota Life Insurance Company No. 16-20831 (5th Cir. 2018) , the United States Court of Appeals, Fifth Circuit, dealt with a case where the question of law before the court was whether death caused by a bite of a mosquito carrying West Nile Encephalitis virus in Texas was covered under an accidental death insurance policy. The Court while remanding the case to the lower court on the disputed issue of facts, observed that the determinate, single act of a mosquito bite was not incidental to a body process and the mosquito, an external force produced an unforeseen result. However, this may be distinguished from the facts in the present case. Malaria is most commonly transmitted to humans through malaria virus infested mosquito bites, and when a virus is contracted through normal means brought about by everyday life it cannot be deemed to be an unexpected or unforeseen accident.20. In a policy of insurance which covers death due to accident, the peril insured against is an accident: an untoward happening or occurrence which is unforeseen and unexpected in the normal course of human events. The death of the insured in the present case was caused by encephalitis malaria. The claim under the policy is founded on the hypothesis that there is an element of uncertainty about whether or when a person would be the victim of a mosquito bite which is a carrier of a vectorborne disease. The submission is that being bitten by a mosquito is an unforeseen eventuality and should be regarded as an accident. We do not agree with this submission. The insured was based in Mozambique. According to the World Health Organization’s World Malaria Report 2018, Mozambique, with a population of 29.6 million people, accounts for 5% of cases of malaria globally. It is also on record that one out of three people in Mozambique is afflicted with malaria. In light of these statistics, the illness of encephalitis malaria through a mosquito bite cannot be considered as an accident. It was neither unexpected nor unforeseen. It was not a peril insured against in the policy of accident insurance.
### Response:
1
### Explanation:
11. In our view, it would be appropriate to approach the issue which has been raised in the present case as a matter of interpreting the conditions contained in the insurance policy.In order to constitute an accident, the event must be in the nature of an occurrence which is unnatural, unforeseen or unexpected. The present case concerns death caused due to a disease being contracted. Section II of theinsurance policy covers death caused by accident. Death or injury from accident caused by insanity or venereal disease has been specifically excluded and not covered under the policy.treatises extracted above construe accidents and diseases as distinct concepts. Baker Welford regardsas a term which does not include disease in the ordinary course of events. Colinvaux acknowledges that a disease caused as a proximate cause of an accident will be covered by a policy for personal accident, in the absence of an exclusion. But then it is also argued that the term accident does not include disease. 15. Courts across international jurisdictions - including in the UK, US and Canada have interpreted the termThere is a fine distinction between the occurrence of a disease which may be considered as an accident and a disease which occurs in the ‘natural course ofIn 1861, theBench Division Sinclair v Maritime Passengers Assurance (1861) 3 E&E 478in the UK was called upon to consider whether a sunstroke suffered by a person while on board a ship in the course of performing his ordinary duties would amount to an accident.As the law of insurance has developed, there has been a nuanced understanding of the distinction between an accident and a disease which is contracted in the natural course of human events in determining whether a policy of accident insurance would cover a disease. At one end of the spectrum is the theory that an accident postulates a mishap or an untoward happening, something which is unexpected and unforeseen. This understanding of what is an accident indicates that something which arises in the natural course of things is not an accident. This is the basis for holding that a disease may not fall for classification as an accident, when it is caused by a bodily infirmity or a condition. A person who suffers from flu or a viral fever cannot say that it is an accident. Of course, there is an element of chance or probability in contracting any illness. Even when viral disease has proliferated in an area, every individual may not suffer from it. Getting a bout of flu or a viral illness may be a matter of chance. But a person who gets the flu cannot be described as having suffered an accident: the flu was transmitted in the natural course of things. To be bitten by a mosquito and be imbued with a malarial parasite does involve an element of chance. But the disease which is caused as a result of the insect bite in the natural course of events cannot be regarded as an accident. Particularly, when the disease is caused in an area which is malaria prone. On the other hand, there may well be instances where a bodily condition from which an individual suffers may be the direct consequence of an accident. A motor car accident may, for instance, result in bodily injuries, the consequence of which is death or disability which may fall within the cover of a policy of accident insurance. Hence, it has been postulated that where a disease is caused or transmitted in the natural course of events, it would not be covered by the definition of an accident. However, in a given case or circumstance, the affliction or bodily condition may be regarded as an accident where its cause or course of transmission is unexpected and unforeseen.19. Recently, in Gloria Wells v Minnesota Life Insurance Company No. 16-20831 (5th Cir. 2018) , the United States Court of Appeals, Fifth Circuit, dealt with a case where the question of law before the court was whether death caused by a bite of a mosquito carrying West Nile Encephalitis virus in Texas was covered under an accidental death insurance policy. The Court while remanding the case to the lower court on the disputed issue of facts, observed that the determinate, single act of a mosquito bite was not incidental to a body process and the mosquito, an external force produced an unforeseen result. However, this may be distinguished from the facts in the present case. Malaria is most commonly transmitted to humans through malaria virus infested mosquito bites, and when a virus is contracted through normal means brought about by everyday life it cannot be deemed to be an unexpected or unforeseen accident.20. In a policy of insurance which covers death due to accident, the peril insured against is an accident: an untoward happening or occurrence which is unforeseen and unexpected in the normal course of human events. The death of the insured in the present case was caused by encephalitis malaria. The claim under the policy is founded on the hypothesis that there is an element of uncertainty about whether or when a person would be the victim of a mosquito bite which is a carrier of a vectorborne disease. The submission is that being bitten by a mosquito is an unforeseen eventuality and should be regarded as an accident. We do not agree with this submission. The insured was based in Mozambique. According to the World HealthWorld Malaria Report 2018, Mozambique, with a population of 29.6 million people, accounts for 5% of cases of malaria globally. It is also on record that one out of three people in Mozambique is afflicted with malaria. In light of these statistics, the illness of encephalitis malaria through a mosquito bite cannot be considered as an accident. It was neither unexpected nor unforeseen. It was not a peril insured against in the policy of accident insurance.
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Workmen of Government Silk Weaving Factory, Mysore Vs. Presiding Officer, Industrial Tribunal, Bangalore & Others | the real office bearers competent to represent the workmen under Section 36 of the Industrial Disputes Act, 1947 ( hereinafter to be referred to as the Act) and posted the cases to February 11, 1966, for evidence. Sannaiah relied on the order of the Munsiff declining to grant an injunction against him as asked for by Rangaiah. On that day, respondents 3 and 4 and others claiming to represent the workmen of the factory and the General Manager of the factory presented before the Tribunal a memorandum of settlement regarding the various items in dispute between the parties. Both the managment by Basavaiah, prayed for awards being made in I. D. Nos. 40 and 47 of 1965 in terms of the settlement. On that day, the Tribunal recorded evidence regarding the settlement and after hearing arguments closed the proceedings and reserved orders. On February 17, 1966, Sannaiah sent an application to the Tribunal praying that the settlement filed before it by the management and the other group of workmen should be rejected. The Tribunal ignored the objection raised by Sannaiah and passed the awards in both the disputes on March 17, 1966, in terms of the settlement filed before it on February 11, 1966. These two awards were challenged by Sannaiah on the ground that the awards were illegal and that the settlement filed before it on February 11, 1966, was not one entered into according to law. The claim was that there had been no proper representation of the workmen in the settlement proceedings and that respondents 3 to 9 and the management had colluded to bring about this settlement which was detrimental to the interest of the workmen. The High Court rejected all the objections raised by the appellant about the validity of the awards and hence these appeals.4. Mr. Ramamurthi, learned counsel for the appellants, has stressed that the settlement purported to have been entered into on February 11, 1966, is invalid as contravening S. 36 of the Act and rule 59 of the Industrial Disputes ( Mysore) Rules, 1957 (hereinafter to be referred to as the Mysore Rules). The counsel urged that there has been no proper representation of the union before the Tribunal, as envisaged under Section 36 of the Act, and the settlement has not been signed in the manner required by sub-rule (2) of Rule 59 of the Mysore Rules. We express no opinion regarding the contentions of Mr. Ramamurthi based on Section 36 and Rule 59, as these appeals can be disposed of on other grounds.5. The Tribunal posed two substantial questions for consideration:(1) Whether the workmen or a majority of them, through their accredited representatives, have entered into a settlement; and(2) Whether the terms of such settlement are to the manifest advantage of ht workmen.The Tribunal recorded evidence on these aspects and has recorded a finding to the effect that the settlement was between a substantial number of workmen on the one hand and the management of the factory on the other in respect of not only the disputes pending adjudication but also certain other disputes and that it was a genuine settlement. It has also, after a consideration of the evidence, recorded a further finding that the terms of the settlement are very fair and just and that the workmen received considerable benefits under the settlement. In view of these circumstances the Tribunal is of the view that as the main purpose of industrial adjudication is to establish peaceful industrial relationship between employer and employee, the settlement should be acted upon and an award passed in terms thereof. Accordingly it accepted the settlement and passed awards in terms thereof. The High Court exercising jurisdiction under Article 226 accepted the findings of fact recorded by the Tribunal,more especially in view of the fact that Sannaiah was not able to establish that there was no evidence before the Tribunal to come to such a conclusion. The High Court has no doubt expressed the opinion that it would have been better for the Tribunal, when a controversy was being raised by the two groups, to decide as to which group was entitled to represent the workmen. But the High Court took note of the fact that Sannaiah was present before the Tribunal on February 11, 1966, when the settlement was filed before it and the Tribunal was recording evidence relating to the same. Though he was present, Sannaiah neither made a request to the Tribunal to adjourn the proceedings to make his representation regarding the settlement nor did he choose to participate in the proceedings and cross-examine the witnesses, who were deposing to the nature of the settlement which had been filed before the Tribunal. It was not his case that he was prevented or declined permission by the Tribunal to participate in the proceedings. Even before the High Court, the appellant did not dispute the fact that a substantial majority of workmen had received considerable benefits under the settlement and that they were also enjoying the same. In view of these circumstances, the High Court declined to interfere with the awards. As already mentioned by us, we, do not propose to go into the question regarding the scope of Section 36 of the Act or rule 59 of the Mysore Rules in these appeals. Whatever technical objections the appellant may have to the manner in which the settlement has been arrived at, it is clear, as found by the Tribunal and accepted by the High Court, that the settlement is beneficial to a substantial body of workmen of this factory. There is also the evidence that Sannaiah had an opportunity to contest the settlement on February 11, 1966, when evidence was being recorded by the Tribunal and he was present in Court. He did not choose to participate in the said proceedings.6. In view of the above circumstances and on the particular facts of this case, we are satisfied that the High Court was justified in declining to interfere with the awards. | 0[ds]As already mentioned by us, we, do not propose to go into the question regarding the scope of Section 36 of the Act or rule 59 of the Mysore Rules in these appeals. Whatever technical objections the appellant may have to the manner in which the settlement has been arrived at, it is clear, as found by the Tribunal and accepted by the High Court, that the settlement is beneficial to a substantial body of workmen of this factory. There is also the evidence that Sannaiah had an opportunity to contest the settlement on February 11, 1966, when evidence was being recorded by the Tribunal and he was present in Court. He did not choose to participate in the said proceedings.6. In view of the above circumstances and on the particular facts of this case, we are satisfied that the High Court was justified in declining to interfere with the awards. | 0 | 1,445 | 168 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the real office bearers competent to represent the workmen under Section 36 of the Industrial Disputes Act, 1947 ( hereinafter to be referred to as the Act) and posted the cases to February 11, 1966, for evidence. Sannaiah relied on the order of the Munsiff declining to grant an injunction against him as asked for by Rangaiah. On that day, respondents 3 and 4 and others claiming to represent the workmen of the factory and the General Manager of the factory presented before the Tribunal a memorandum of settlement regarding the various items in dispute between the parties. Both the managment by Basavaiah, prayed for awards being made in I. D. Nos. 40 and 47 of 1965 in terms of the settlement. On that day, the Tribunal recorded evidence regarding the settlement and after hearing arguments closed the proceedings and reserved orders. On February 17, 1966, Sannaiah sent an application to the Tribunal praying that the settlement filed before it by the management and the other group of workmen should be rejected. The Tribunal ignored the objection raised by Sannaiah and passed the awards in both the disputes on March 17, 1966, in terms of the settlement filed before it on February 11, 1966. These two awards were challenged by Sannaiah on the ground that the awards were illegal and that the settlement filed before it on February 11, 1966, was not one entered into according to law. The claim was that there had been no proper representation of the workmen in the settlement proceedings and that respondents 3 to 9 and the management had colluded to bring about this settlement which was detrimental to the interest of the workmen. The High Court rejected all the objections raised by the appellant about the validity of the awards and hence these appeals.4. Mr. Ramamurthi, learned counsel for the appellants, has stressed that the settlement purported to have been entered into on February 11, 1966, is invalid as contravening S. 36 of the Act and rule 59 of the Industrial Disputes ( Mysore) Rules, 1957 (hereinafter to be referred to as the Mysore Rules). The counsel urged that there has been no proper representation of the union before the Tribunal, as envisaged under Section 36 of the Act, and the settlement has not been signed in the manner required by sub-rule (2) of Rule 59 of the Mysore Rules. We express no opinion regarding the contentions of Mr. Ramamurthi based on Section 36 and Rule 59, as these appeals can be disposed of on other grounds.5. The Tribunal posed two substantial questions for consideration:(1) Whether the workmen or a majority of them, through their accredited representatives, have entered into a settlement; and(2) Whether the terms of such settlement are to the manifest advantage of ht workmen.The Tribunal recorded evidence on these aspects and has recorded a finding to the effect that the settlement was between a substantial number of workmen on the one hand and the management of the factory on the other in respect of not only the disputes pending adjudication but also certain other disputes and that it was a genuine settlement. It has also, after a consideration of the evidence, recorded a further finding that the terms of the settlement are very fair and just and that the workmen received considerable benefits under the settlement. In view of these circumstances the Tribunal is of the view that as the main purpose of industrial adjudication is to establish peaceful industrial relationship between employer and employee, the settlement should be acted upon and an award passed in terms thereof. Accordingly it accepted the settlement and passed awards in terms thereof. The High Court exercising jurisdiction under Article 226 accepted the findings of fact recorded by the Tribunal,more especially in view of the fact that Sannaiah was not able to establish that there was no evidence before the Tribunal to come to such a conclusion. The High Court has no doubt expressed the opinion that it would have been better for the Tribunal, when a controversy was being raised by the two groups, to decide as to which group was entitled to represent the workmen. But the High Court took note of the fact that Sannaiah was present before the Tribunal on February 11, 1966, when the settlement was filed before it and the Tribunal was recording evidence relating to the same. Though he was present, Sannaiah neither made a request to the Tribunal to adjourn the proceedings to make his representation regarding the settlement nor did he choose to participate in the proceedings and cross-examine the witnesses, who were deposing to the nature of the settlement which had been filed before the Tribunal. It was not his case that he was prevented or declined permission by the Tribunal to participate in the proceedings. Even before the High Court, the appellant did not dispute the fact that a substantial majority of workmen had received considerable benefits under the settlement and that they were also enjoying the same. In view of these circumstances, the High Court declined to interfere with the awards. As already mentioned by us, we, do not propose to go into the question regarding the scope of Section 36 of the Act or rule 59 of the Mysore Rules in these appeals. Whatever technical objections the appellant may have to the manner in which the settlement has been arrived at, it is clear, as found by the Tribunal and accepted by the High Court, that the settlement is beneficial to a substantial body of workmen of this factory. There is also the evidence that Sannaiah had an opportunity to contest the settlement on February 11, 1966, when evidence was being recorded by the Tribunal and he was present in Court. He did not choose to participate in the said proceedings.6. In view of the above circumstances and on the particular facts of this case, we are satisfied that the High Court was justified in declining to interfere with the awards.
### Response:
0
### Explanation:
As already mentioned by us, we, do not propose to go into the question regarding the scope of Section 36 of the Act or rule 59 of the Mysore Rules in these appeals. Whatever technical objections the appellant may have to the manner in which the settlement has been arrived at, it is clear, as found by the Tribunal and accepted by the High Court, that the settlement is beneficial to a substantial body of workmen of this factory. There is also the evidence that Sannaiah had an opportunity to contest the settlement on February 11, 1966, when evidence was being recorded by the Tribunal and he was present in Court. He did not choose to participate in the said proceedings.6. In view of the above circumstances and on the particular facts of this case, we are satisfied that the High Court was justified in declining to interfere with the awards.
|
K. K. Wahi & Ors Vs. The General Manager, N. Rly. & Ors | Khanna, J.1. This appeal by special leave by K. K. Wahi and two others is directed against the judgment of the Delhi High Court affirming on appeal the decision of the reamed single judge whereby petition under Article 226 of the Constitution of India filed by nine petitioners, including the three appellants, to challenge an order about the cancellation of a panel by the Railway Board was only partly allowed.2. The Senior Personnel Officer, Northern Railway notified on May 11, 1970 the names of the nine writ petitioners as having been selected for the posts of computers in the grade of Rs. 335-485. Prior to that date, four of the petitioners were officiating as computers on ad hoc basis. The fifth petitioner was officiating as head draftsman and the ret maining four petitioners were working as draftsmen. The post of computer was a selection post. The procedure for filling of such a post is given in paragraphs 213 to 216 of the Indian Railway Establishment Manual. Paragraph 216, which is material for our purposes, reads as under:"216. After the competent authority has accepted the recommendations of the Selection Board, the names of the candidates selected will be notified to the candidates. A panel once approved should normally not be cancelled or amended. If after the formation and announcement of the panel with the approval of the competent authority it is found subsequently that there were procedural irregularities or other defects and it is considered necessary to cancel or amend such a panel, this should be done after obtaining the approval of authority next higher than the one that approved the panel."The Senior Personnel Officer notified on October 30, 1970 the cancellation of the panel relating to the nine petitioners by the Railway Board.3. Feeling aggrieved against the order of the Railway Board, the nine petitioners filed writ petition in the High Court praying for the issuance of a writ for quashing the order dated October 30, 1970. It was urged on behalf of the petitioners that the power to cancel the panel could be exercised under paragraph 216 reproduced above if it was found that there were procedural irregularities or other defects. There was, it was further submitted, no procedural irregularity or other defect in the selection of the petitioners and as such the cancellation of the panel was not proper. As against that, it was stated on behalf of the railway administration that there had been procedural irregularities and other defects in the selection of the petitioners for the panel. The cancellation of the panel was in the circumstances stated to be not improper.4. It was not disputed before the learned single Judge that there were only four vacancies when applications for the selection of the panel were invited on May 21, 1969. In view of those four vacancies and 25 per cent. for unforeseen vacancies, only five of the petitioners it was held, could be selected for the panel. The contention on behalf of the petitioners that, in considering the number of vacancies for the selection of panel, workcharged short-term vacancies should also have been taken into account as they constituted anticipated vacancies was rejected. In the result the learned single Judge quashed the order for cancellation of the panel in so far as it related to Five out of the nine petitioners. The cancellation order was, however, upheld in respect of the remaining four petitioners including the three appellants.5. On cross appeals having been filed by the appellants and the railway administration. the Division Bench of the High Court affirmed the decision of the learned single Judge and dismissed both the appeals.6. Before us Mr. Iyengar on behalf of the appellants has submitted that apart from the vacancies which were taken into account by the High Court, there were workcharged short-term anticipated vacancies. It is submitted that these short term anticipated vacancies too should have also been taken into accounting for which selection was to be made for the panel. We are unable to accede to the above submission. According to the instructions contained in letters dated November 12, l968 and April 30, 1969 anticipated vacancies could be only those vacancies which were likely to arise due to normal wastage during the currency of the panel. A panel under paragraph 217 was to be current for two years from the date of approval by the competent authority or till its exhaustion, whichever was earlier. We agree with the High Court that workcharged short-term vacancies are not such as can be said to arise due to normal wastage during the currency of the panel. Vacancies arising due to normal wastage during the currency of a panel are such as can generally be foreseen because they occur on account of the retirement of those at present holding the posts or for other similar cause. A short-term vacancy for a workcharged job cannot be said to arise due to normal wastage. | 0[ds]We are unable to accede to the above submission. According to the instructions contained in letters dated November 12, l968 and April 30, 1969 anticipated vacancies could be only those vacancies which were likely to arise due to normal wastage during the currency of the panel. A panel under paragraph 217 was to be current for two years from the date of approval by the competent authority or till its exhaustion, whichever was earlier. We agree with the High Court that workcharged short-term vacancies are not such as can be said to arise due to normal wastage during the currency of the panel. Vacancies arising due to normal wastage during the currency of a panel are such as can generally be foreseen because they occur on account of the retirement of those at present holding the posts or for other similar cause. A short-term vacancy for a workcharged job cannot be said to arise due to normal wastage. | 0 | 888 | 172 | ### 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:
Khanna, J.1. This appeal by special leave by K. K. Wahi and two others is directed against the judgment of the Delhi High Court affirming on appeal the decision of the reamed single judge whereby petition under Article 226 of the Constitution of India filed by nine petitioners, including the three appellants, to challenge an order about the cancellation of a panel by the Railway Board was only partly allowed.2. The Senior Personnel Officer, Northern Railway notified on May 11, 1970 the names of the nine writ petitioners as having been selected for the posts of computers in the grade of Rs. 335-485. Prior to that date, four of the petitioners were officiating as computers on ad hoc basis. The fifth petitioner was officiating as head draftsman and the ret maining four petitioners were working as draftsmen. The post of computer was a selection post. The procedure for filling of such a post is given in paragraphs 213 to 216 of the Indian Railway Establishment Manual. Paragraph 216, which is material for our purposes, reads as under:"216. After the competent authority has accepted the recommendations of the Selection Board, the names of the candidates selected will be notified to the candidates. A panel once approved should normally not be cancelled or amended. If after the formation and announcement of the panel with the approval of the competent authority it is found subsequently that there were procedural irregularities or other defects and it is considered necessary to cancel or amend such a panel, this should be done after obtaining the approval of authority next higher than the one that approved the panel."The Senior Personnel Officer notified on October 30, 1970 the cancellation of the panel relating to the nine petitioners by the Railway Board.3. Feeling aggrieved against the order of the Railway Board, the nine petitioners filed writ petition in the High Court praying for the issuance of a writ for quashing the order dated October 30, 1970. It was urged on behalf of the petitioners that the power to cancel the panel could be exercised under paragraph 216 reproduced above if it was found that there were procedural irregularities or other defects. There was, it was further submitted, no procedural irregularity or other defect in the selection of the petitioners and as such the cancellation of the panel was not proper. As against that, it was stated on behalf of the railway administration that there had been procedural irregularities and other defects in the selection of the petitioners for the panel. The cancellation of the panel was in the circumstances stated to be not improper.4. It was not disputed before the learned single Judge that there were only four vacancies when applications for the selection of the panel were invited on May 21, 1969. In view of those four vacancies and 25 per cent. for unforeseen vacancies, only five of the petitioners it was held, could be selected for the panel. The contention on behalf of the petitioners that, in considering the number of vacancies for the selection of panel, workcharged short-term vacancies should also have been taken into account as they constituted anticipated vacancies was rejected. In the result the learned single Judge quashed the order for cancellation of the panel in so far as it related to Five out of the nine petitioners. The cancellation order was, however, upheld in respect of the remaining four petitioners including the three appellants.5. On cross appeals having been filed by the appellants and the railway administration. the Division Bench of the High Court affirmed the decision of the learned single Judge and dismissed both the appeals.6. Before us Mr. Iyengar on behalf of the appellants has submitted that apart from the vacancies which were taken into account by the High Court, there were workcharged short-term anticipated vacancies. It is submitted that these short term anticipated vacancies too should have also been taken into accounting for which selection was to be made for the panel. We are unable to accede to the above submission. According to the instructions contained in letters dated November 12, l968 and April 30, 1969 anticipated vacancies could be only those vacancies which were likely to arise due to normal wastage during the currency of the panel. A panel under paragraph 217 was to be current for two years from the date of approval by the competent authority or till its exhaustion, whichever was earlier. We agree with the High Court that workcharged short-term vacancies are not such as can be said to arise due to normal wastage during the currency of the panel. Vacancies arising due to normal wastage during the currency of a panel are such as can generally be foreseen because they occur on account of the retirement of those at present holding the posts or for other similar cause. A short-term vacancy for a workcharged job cannot be said to arise due to normal wastage.
### Response:
0
### Explanation:
We are unable to accede to the above submission. According to the instructions contained in letters dated November 12, l968 and April 30, 1969 anticipated vacancies could be only those vacancies which were likely to arise due to normal wastage during the currency of the panel. A panel under paragraph 217 was to be current for two years from the date of approval by the competent authority or till its exhaustion, whichever was earlier. We agree with the High Court that workcharged short-term vacancies are not such as can be said to arise due to normal wastage during the currency of the panel. Vacancies arising due to normal wastage during the currency of a panel are such as can generally be foreseen because they occur on account of the retirement of those at present holding the posts or for other similar cause. A short-term vacancy for a workcharged job cannot be said to arise due to normal wastage.
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Steel Authority of India Ltd Vs. State of M.P | To compute the present value of an income extended over a period of time...." 22. According to the Oxford English Dictionary (Being a Corrected Re-issue with an Introduction, Supplement, and Bibliography of a New English Dictionary on Historical Principles, Volume II-C) the word Capitalize means ....2" To Convert (a periodical income or payment) into an equivalent capital sum; to compute or realise the present value of such a payment for a definite or indefinite length of time...." 23. The object of the Rules framed by the Secretary of State in 1925 is clear that land revenue was to be capitalized and collected once for all and that no land revenue could be further recovered thereafter. Land revenue had to be paid periodically and in view of the above dictionary meanings and in view of the rules framed in 1925, once land revenue was capitalized and paid, no further amount could be realised by the State Government for the land transferred. Thereafter the case falls under sub-clause (1) of Section 58 which states that by virtue of provisions in a rule made land revenue could become exempt. 24. Though Mr. Banthia has urged that as no reply was sent to the letter of the State Government dated 25th September, 1958, therefore, there was no contract under Article 299 of the Constitution of India between the Central Government and the State Government regarding the non-payment of land revenue, we are unable to accept the contention of the learned counsel inasmuch as by the conduct of the parties it is very clear that both the Governments agreed with the terms mentioned in the letter of the State Government dated 25th September, 1958 and, therefore, there was also a contract between the parties regarding the exemption from payment of land revenue, if 25 times of the land revenue was paid once for all. The contention that such a contract is not executed in the form required under Article 299 cannot be accepted. This point was not raised inthe High Court. Apart from that it is clear that Article 299 applies only to contracts to be executed in exercise of "executive power" and not to those executed by virtue of statutory power like Section 58 of the Code. (See State of Haryana v. Lal Chand, 1984(3) SCC 634; Lalji Khimji v. State of Gujarat, 1993 Suppl. (3) SCC 567 . In the latter case, Anand, J. (as he then was) observed as follows :- "There is a marked distinction between contracts which are executed in exercise of the executive powers and agreements or orders made which are statutory in nature .......In State of Haryana v. Lal Chand, this Court considered a contract granting exclusive privilege of liquor vending, in exercise of the statutory powers referable to Punjab Excise Act, 1914 and Punjab Liquor Licence Rules, 1956, and held that the grant of the exclusive privilege gave rise to a contract of a statutory nature, distinguished from the one executed under Article 299(1) and, therefore, compliance with Article 299(1) was not required in such a case." 25. Section 58 of the Code provides that land revenue is payable in respect of all land unless it is exempted from such liability by special grant or contract with the State Government. In view of the agreement between both the Governments and in view of the above provisions of Section 58 of the Code we hold that no land revenue is payable for the land in question more particularly as it has been capitalized at 25 times of the land revenue prevailing at that time. 26. Thus, whether it is because of the 1925 Rules or the Contract, Central Government was not liable to pay land revenue once it had paid the 25 times land revenue as a one time payment. 27. The next question is whether after the land was transferred to the Company, the company would be liable to pay any land revenue under the Code ? 28. Two deeds of assignment were executed on consideration for transferring shares by the Company to the Central Government. We may refer to relevant portions of the assignment deeds : "......the Government both hereby grant convey transfer assign and assure unto the Company all those several pieces or parcels of lands and hereditariness situate....." "......rights, liberties, privileges, easements, advantages, and opportunas whatsoever to the said lands, hereditaments and premises appertaining to or with the same or any part thereof now or hereto have or may hereafter be occupied or enjoyed or reported or known as part and parcel or member thereof or appertaining thereto (hereinafter called "the said lands and buildings"). ".......and all the estate, right, title and interest, claim and demand of the Government into and upon the lands and buildings, the plant or every part thereof and also all the deeds and other evidences of title in any way relating to the said lands and hereditaments and all receipts and documents and other evidence of title to the plant and the component parts thereof an installed or brought in by the Government in connection with the said "Bhilai Steel Project...." 29. thus it is clear from the above clauses of the deeds of assignment that while transferring the land to the Company rights, liberties, privileges etc. to the said land were also transferred. Therefore, the privileges of or right to exemption accrued to the Central Government not to pay land revenue to the State Government under Section 58 of the Code would also be available to the appellant-company, as a successor in interest to the Central Government. 30. Another point has been urged on behalf of the appellant that assessment of land revenue is barred by limitation. We need not entertain into this aspect as we have held that the appellant company is not liable to pay any land revenue. 31. We may mention that the State Government was also were that no land revenue was payable but the proceedings were started in view of the audit objection. | 1[ds]19. It will be noticed that in the letter of the Madhya Pradesh Government dated 25.9.58 which was referred to above, the salient features of the rules framed by the Secretary to the Madhya Pradesh Government in 1925 were referred to. The condition No. A clearly lays down that the capitalized value of the land revenue has to be assessed and paid to the State Government towards loss of land revenue as no land revenue can be recovered from the Central Government later on. From paragraph 10 of the letter which has been quoted above we also find that land revenue in respect of land held by the private persons has to be capitalized at 25 times and capitalized value of land revenue shall be payable by the Central Government to the Government of Madhya Pradesh.The object of the Rules framed by the Secretary of State in 1925 is clear that land revenue was to be capitalized and collected once for all and that no land revenue could be further recovered thereafter. Land revenue had to be paid periodically and in view of the above dictionary meanings and in view of the rules framed in 1925, once land revenue was capitalized and paid, no further amount could be realised by the State Government for the land transferred. Thereafter the case falls under(1) of Section 58 which states that by virtue of provisions in a rule made land revenue could become exempt.Section 58 of the Code provides that land revenue is payable in respect of all land unless it is exempted from such liability by special grant or contract with the State Government. In view of the agreement between both the Governments and in view of the above provisions of Section 58 of the Code we hold that no land revenue is payable for the land in question more particularly as it has been capitalized at 25 times of the land revenue prevailing at that time.Thus, whether it is because of the 1925 Rules or the Contract, Central Government was not liable to pay land revenue once it had paid the 25 times land revenue as a one time payment.thus it is clear from the above clauses of the deeds of assignment that while transferring the land to the Company rights, liberties, privileges etc. to the said land were also transferred. Therefore, the privileges of or right to exemption accrued to the Central Government not to pay land revenue to the State Government under Section 58 of the Code would also be available to theas a successor in interest to the Central Government.Though Mr. Banthia has urged that as no reply was sent to the letter of the State Government dated 25th September, 1958, therefore, there was no contract under Article 299 of the Constitution of India between the Central Government and the State Government regarding theof land revenue, we are unable to accept the contention of the learned counsel inasmuch as by the conduct of the parties it is very clear that both the Governments agreed with the terms mentioned in the letter of the State Government dated 25th September, 1958 and, therefore, there was also a contract between the parties regarding the exemption from payment of land revenue, if 25 times of the land revenue was paid once for all. The contention that such a contract is not executed in the form required under Article 299 cannot be accepted. This point was not raised inthe High Court. Apart from that it is clear that Article 299 applies only to contracts to be executed in exercise of "executive power" and not to those executed by virtue of statutory power like Section 58 of the Code. (See State of Haryana v. Lal Chand, 1984(3) SCC 634; Lalji Khimji v. State of Gujarat, 1993 Suppl. (3) SCC 567 . In the latter case, Anand, J. (as he then was) observed as followsis a marked distinction between contracts which are executed in exercise of the executive powers and agreements or orders made which are statutory in nature .......In State of Haryana v. Lal Chand, this Court considered a contract granting exclusive privilege of liquor vending, in exercise of the statutory powers referable to Punjab Excise Act, 1914 and Punjab Liquor Licence Rules, 1956, and held that the grant of the exclusive privilege gave rise to a contract of a statutory nature, distinguished from the one executed under Article 299(1) and, therefore, compliance with Article 299(1) was not required in such aneed not entertain into this aspect as we have held that the appellant company is not liable to pay any land revenue.We may mention that the State Government was also were that no land revenue was payable but the proceedings were started in view of the audit objection. | 1 | 3,810 | 865 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
To compute the present value of an income extended over a period of time...." 22. According to the Oxford English Dictionary (Being a Corrected Re-issue with an Introduction, Supplement, and Bibliography of a New English Dictionary on Historical Principles, Volume II-C) the word Capitalize means ....2" To Convert (a periodical income or payment) into an equivalent capital sum; to compute or realise the present value of such a payment for a definite or indefinite length of time...." 23. The object of the Rules framed by the Secretary of State in 1925 is clear that land revenue was to be capitalized and collected once for all and that no land revenue could be further recovered thereafter. Land revenue had to be paid periodically and in view of the above dictionary meanings and in view of the rules framed in 1925, once land revenue was capitalized and paid, no further amount could be realised by the State Government for the land transferred. Thereafter the case falls under sub-clause (1) of Section 58 which states that by virtue of provisions in a rule made land revenue could become exempt. 24. Though Mr. Banthia has urged that as no reply was sent to the letter of the State Government dated 25th September, 1958, therefore, there was no contract under Article 299 of the Constitution of India between the Central Government and the State Government regarding the non-payment of land revenue, we are unable to accept the contention of the learned counsel inasmuch as by the conduct of the parties it is very clear that both the Governments agreed with the terms mentioned in the letter of the State Government dated 25th September, 1958 and, therefore, there was also a contract between the parties regarding the exemption from payment of land revenue, if 25 times of the land revenue was paid once for all. The contention that such a contract is not executed in the form required under Article 299 cannot be accepted. This point was not raised inthe High Court. Apart from that it is clear that Article 299 applies only to contracts to be executed in exercise of "executive power" and not to those executed by virtue of statutory power like Section 58 of the Code. (See State of Haryana v. Lal Chand, 1984(3) SCC 634; Lalji Khimji v. State of Gujarat, 1993 Suppl. (3) SCC 567 . In the latter case, Anand, J. (as he then was) observed as follows :- "There is a marked distinction between contracts which are executed in exercise of the executive powers and agreements or orders made which are statutory in nature .......In State of Haryana v. Lal Chand, this Court considered a contract granting exclusive privilege of liquor vending, in exercise of the statutory powers referable to Punjab Excise Act, 1914 and Punjab Liquor Licence Rules, 1956, and held that the grant of the exclusive privilege gave rise to a contract of a statutory nature, distinguished from the one executed under Article 299(1) and, therefore, compliance with Article 299(1) was not required in such a case." 25. Section 58 of the Code provides that land revenue is payable in respect of all land unless it is exempted from such liability by special grant or contract with the State Government. In view of the agreement between both the Governments and in view of the above provisions of Section 58 of the Code we hold that no land revenue is payable for the land in question more particularly as it has been capitalized at 25 times of the land revenue prevailing at that time. 26. Thus, whether it is because of the 1925 Rules or the Contract, Central Government was not liable to pay land revenue once it had paid the 25 times land revenue as a one time payment. 27. The next question is whether after the land was transferred to the Company, the company would be liable to pay any land revenue under the Code ? 28. Two deeds of assignment were executed on consideration for transferring shares by the Company to the Central Government. We may refer to relevant portions of the assignment deeds : "......the Government both hereby grant convey transfer assign and assure unto the Company all those several pieces or parcels of lands and hereditariness situate....." "......rights, liberties, privileges, easements, advantages, and opportunas whatsoever to the said lands, hereditaments and premises appertaining to or with the same or any part thereof now or hereto have or may hereafter be occupied or enjoyed or reported or known as part and parcel or member thereof or appertaining thereto (hereinafter called "the said lands and buildings"). ".......and all the estate, right, title and interest, claim and demand of the Government into and upon the lands and buildings, the plant or every part thereof and also all the deeds and other evidences of title in any way relating to the said lands and hereditaments and all receipts and documents and other evidence of title to the plant and the component parts thereof an installed or brought in by the Government in connection with the said "Bhilai Steel Project...." 29. thus it is clear from the above clauses of the deeds of assignment that while transferring the land to the Company rights, liberties, privileges etc. to the said land were also transferred. Therefore, the privileges of or right to exemption accrued to the Central Government not to pay land revenue to the State Government under Section 58 of the Code would also be available to the appellant-company, as a successor in interest to the Central Government. 30. Another point has been urged on behalf of the appellant that assessment of land revenue is barred by limitation. We need not entertain into this aspect as we have held that the appellant company is not liable to pay any land revenue. 31. We may mention that the State Government was also were that no land revenue was payable but the proceedings were started in view of the audit objection.
### Response:
1
### Explanation:
19. It will be noticed that in the letter of the Madhya Pradesh Government dated 25.9.58 which was referred to above, the salient features of the rules framed by the Secretary to the Madhya Pradesh Government in 1925 were referred to. The condition No. A clearly lays down that the capitalized value of the land revenue has to be assessed and paid to the State Government towards loss of land revenue as no land revenue can be recovered from the Central Government later on. From paragraph 10 of the letter which has been quoted above we also find that land revenue in respect of land held by the private persons has to be capitalized at 25 times and capitalized value of land revenue shall be payable by the Central Government to the Government of Madhya Pradesh.The object of the Rules framed by the Secretary of State in 1925 is clear that land revenue was to be capitalized and collected once for all and that no land revenue could be further recovered thereafter. Land revenue had to be paid periodically and in view of the above dictionary meanings and in view of the rules framed in 1925, once land revenue was capitalized and paid, no further amount could be realised by the State Government for the land transferred. Thereafter the case falls under(1) of Section 58 which states that by virtue of provisions in a rule made land revenue could become exempt.Section 58 of the Code provides that land revenue is payable in respect of all land unless it is exempted from such liability by special grant or contract with the State Government. In view of the agreement between both the Governments and in view of the above provisions of Section 58 of the Code we hold that no land revenue is payable for the land in question more particularly as it has been capitalized at 25 times of the land revenue prevailing at that time.Thus, whether it is because of the 1925 Rules or the Contract, Central Government was not liable to pay land revenue once it had paid the 25 times land revenue as a one time payment.thus it is clear from the above clauses of the deeds of assignment that while transferring the land to the Company rights, liberties, privileges etc. to the said land were also transferred. Therefore, the privileges of or right to exemption accrued to the Central Government not to pay land revenue to the State Government under Section 58 of the Code would also be available to theas a successor in interest to the Central Government.Though Mr. Banthia has urged that as no reply was sent to the letter of the State Government dated 25th September, 1958, therefore, there was no contract under Article 299 of the Constitution of India between the Central Government and the State Government regarding theof land revenue, we are unable to accept the contention of the learned counsel inasmuch as by the conduct of the parties it is very clear that both the Governments agreed with the terms mentioned in the letter of the State Government dated 25th September, 1958 and, therefore, there was also a contract between the parties regarding the exemption from payment of land revenue, if 25 times of the land revenue was paid once for all. The contention that such a contract is not executed in the form required under Article 299 cannot be accepted. This point was not raised inthe High Court. Apart from that it is clear that Article 299 applies only to contracts to be executed in exercise of "executive power" and not to those executed by virtue of statutory power like Section 58 of the Code. (See State of Haryana v. Lal Chand, 1984(3) SCC 634; Lalji Khimji v. State of Gujarat, 1993 Suppl. (3) SCC 567 . In the latter case, Anand, J. (as he then was) observed as followsis a marked distinction between contracts which are executed in exercise of the executive powers and agreements or orders made which are statutory in nature .......In State of Haryana v. Lal Chand, this Court considered a contract granting exclusive privilege of liquor vending, in exercise of the statutory powers referable to Punjab Excise Act, 1914 and Punjab Liquor Licence Rules, 1956, and held that the grant of the exclusive privilege gave rise to a contract of a statutory nature, distinguished from the one executed under Article 299(1) and, therefore, compliance with Article 299(1) was not required in such aneed not entertain into this aspect as we have held that the appellant company is not liable to pay any land revenue.We may mention that the State Government was also were that no land revenue was payable but the proceedings were started in view of the audit objection.
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Harkant Hiralal Vohra (Dead) By L.Rs Vs. Union Of India & Anr | Order dated 1.3.82. Hence, he moved the Gujarat High Court, which transferred the matter to the Central Administrative Tribunal and the Tribunal in the order under appeal has dismissed the claim of the appellant for four advance increments w.e.f. 1.5.61. Aggrieved by that, the present appeal has been preferred by special leave. 5. Learned counsel appearing for the appellant invited our attention to a number of documents to show that the appellant was entitled to the benefit of Railway Boards Letter dated 9.8.61. Once such document was paragraph 644 of the Indian Railway Establishment Manual. It is the further case of the learned counsel for the appellant that the Tribunal, by mentioning only Clause (a) of Paragraph 644, rejected the claim of the appellant without referring to Clause (b) of the same Paragraph, which is relevant for his claim. He also invited our attention to the seniority list of the category of `CGIS, which, according to the learned counsel for the appellant, exempted the appellant from appearing in the Appendix-IIA examination. He also referred to two other documents dated 22.7.59 and 23.11.60 to further support his contention that the appellant was exempted from appearing in the Appendix IIA examination. In the light of the documents brought to the notice of this Court, learned counsel for the appellant submitted that the order of the Tribunal has to be set aside and the relief prayed for has to be granted. 6. Learned counsel appearing for the respondent-railways submitted that the document relied on by the learned counsel for the appellant will not help the appellant to get the increments, but will help him only to get promotion. 7. Before discussing the matter further, we would like to point out that having regard to the fact that the appellant retired and died pending appeal, we had directed the learned counsel appearing for the respondent to find out from the Railways whether they can settle the matter out of Court. Learned counsel for the respondent, after taking several adjournments, informed us that the respondents were not willing to settle the matter out of Court. 8. The learned counsel for the appellant was right when he contended that the Tribunal went wrong in deciding the issue against the appellant by noticing only Clause (a) of Paragraph 644 of the Manual without referring to Clause (b) of the same Paragraph.The relevant documents read as follows :1. The relevant position of Paragraph 644(a) and (b) of the Manual is given below :-"644. Clerks Grade II on promotion to post of Clerks Grade I in the Accounts Department :(a) Clerks Grade II promoted as Clerks Grade I on or after 1.5.61 by virtue of either passing Appendix II-A Examination or having been permanently exempted from passing that examination, will have the pay fixed at stage that would be arrived at by grant of four advance increments, in the grade of Clerks Grade I after normal fixation, subject to a minimum of Rs. 150/- as indicated below.(b) In the case of Clerks Grade I promoted before 1.5.61, the pay of all such staff, whether working in a permanent or officiating capacity, should be refixed on 1.5.61 as (a) above, with reference to the pay to which they would be entitled as Clerk Grade II, but for their promotion as Clerks Grade I and they should be allowed either the pay so refixed on 1.5.61 or their existing pay, whichever is more beneficial to them."2. Seniority List of Category of CGIS is given below:-Ref : FA & CAO(Adm) CCGs No.ADM IV/A2083/E-1030/10/0/Vol-III dated 24.11.69.3. Copy of Item No. 359 of Minutes of the Meeting with G.M. held on 21st and 22nd July, 1959, is given below :-"359. Graded staff transferred from Mech. Deptt. to Accounts Deptt.G.P.O. explained that according to the accounts memorandum of 18.9.1958 issued with the approval of GMS. The staff who were willing to go on transfer to the Accounts Deptt. were taken over permanently by the Accounts treating their transfer as in the interest of service thereby causing no loss in the seniority. He also stated that the staff of the Mech. Deptt. will get seniority in that grade in the Accounts Deptt. without having to pass any examination."4. The document dated 23.11.60 was one relating to Sub-graduation List of Staff as on 1.9.60. This document gives the seniority list of Clerks Grade-I and there is one column saying that the appellant was exempted from appearing in the Appendix-IIA examination.9. A careful perusal of Paragraph 644(b) of the Manual and the other documents, extracted above, namely, seniority list of the category CGIS exempting the appellant from the departmental examination, etc. will support the case of the appellant. It is not in dispute that had the Appellant been exempted from appearing in Appendix IIA examination, he was entitled to get 4 advance increments as provided in the Railway Boards letter dated 9.8.1961. Railway Boards letters paragraphs 1 and 2 are in identical terms with paragraph 644(a) and (b) of Indian Railway Establishment Manual. After perusing the documents produced before us, we are unable to agree with the learned counsel for the respondents that the documents referred to and relied upon by the learned counsel for the appellant, relate only to promotion and not to grant of increments. A conjoint reading of the above referred to documents will show that the appellant was exempted from appearing in the Appendix IIA examination not only for the purpose of seniority but also for the purpose of getting four advance increments under the Railway Boards Letter dated 9.8.61.10. In the result, the appeal succeeds and the respondents are directed to recalculate the salary of the deceased appellant after giving four increments from 1.5.61 and also the pensionary benefits. The additional amount now to be paid, as a result of re-calculation by the respondents, to the legal representatives of the deceased-appellant, will bear interest at the rate of 12% p.a.11. The appeal is accordingly allowed with costs, which we quantify at Rs. 5,000/-. | 1[ds]8. The learned counsel for the appellant was right when he contended that the Tribunal went wrong in deciding the issue against the appellant by noticing only Clause (a) of Paragraph 644 of the Manual without referring to Clause (b) of the same Paragraph.The relevant documents read as follows :1. The relevant position of Paragraph 644(a) and (b) of the Manual is given below :-"644. Clerks Grade II on promotion to post of Clerks Grade I in the Accounts Department :(a) Clerks Grade II promoted as Clerks Grade I on or after 1.5.61 by virtue of either passing Appendix II-A Examination or having been permanently exempted from passing that examination, will have the pay fixed at stage that would be arrived at by grant of four advance increments, in the grade of Clerks Grade I after normal fixation, subject to a minimum of Rs. 150/- as indicated below.(b) In the case of Clerks Grade I promoted before 1.5.61, the pay of all such staff, whether working in a permanent or officiating capacity, should be refixed on 1.5.61 as (a) above, with reference to the pay to which they would be entitled as Clerk Grade II, but for their promotion as Clerks Grade I and they should be allowed either the pay so refixed on 1.5.61 or their existing pay, whichever is more beneficial to them."2. Seniority List of Category of CGIS is given below:-Ref : FA & CAO(Adm) CCGs No.ADM IV/A2083/E-1030/10/0/Vol-III dated 24.11.69.3. Copy of Item No. 359 of Minutes of the Meeting with G.M. held on 21st and 22nd July, 1959, is given below :-"359. Graded staff transferred from Mech. Deptt. to Accounts Deptt.G.P.O. explained that according to the accounts memorandum of 18.9.1958 issued with the approval of GMS. The staff who were willing to go on transfer to the Accounts Deptt. were taken over permanently by the Accounts treating their transfer as in the interest of service thereby causing no loss in the seniority. He also stated that the staff of the Mech. Deptt. will get seniority in that grade in the Accounts Deptt. without having to pass any examination."4. The document dated 23.11.60 was one relating to Sub-graduation List of Staff as on 1.9.60. This document gives the seniority list of Clerks Grade-I and there is one column saying that the appellant was exempted from appearing in the Appendix-IIA examination.9. A careful perusal of Paragraph 644(b) of the Manual and the other documents, extracted above, namely, seniority list of the category CGIS exempting the appellant from the departmental examination, etc. will support the case of the appellant. It is not in dispute that had the Appellant been exempted from appearing in Appendix IIA examination, he was entitled to get 4 advance increments as provided in the Railway Boards letter dated 9.8.1961. Railway Boards letters paragraphs 1 and 2 are in identical terms with paragraph 644(a) and (b) of Indian Railway Establishment Manual. After perusing the documents produced before us, we are unable to agree with the learned counsel for the respondents that the documents referred to and relied upon by the learned counsel for the appellant, relate only to promotion and not to grant of increments. A conjoint reading of the above referred to documents will show that the appellant was exempted from appearing in the Appendix IIA examination not only for the purpose of seniority but also for the purpose of getting four advance increments under the Railway Boards Letter dated 9.8.61.10. In the result, the appeal succeeds and the respondents are directed to recalculate the salary of the deceased appellant after giving four increments from 1.5.61 and also the pensionary benefits. The additional amount now to be paid, as a result of re-calculation by the respondents, to the legal representatives of the deceased-appellant, will bear interest at the rate of 12% p.a.11. The appeal is accordingly allowed with costs, which we quantify at Rs. 5,000/-.Appeal allowed. | 1 | 1,619 | 751 | ### 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:
Order dated 1.3.82. Hence, he moved the Gujarat High Court, which transferred the matter to the Central Administrative Tribunal and the Tribunal in the order under appeal has dismissed the claim of the appellant for four advance increments w.e.f. 1.5.61. Aggrieved by that, the present appeal has been preferred by special leave. 5. Learned counsel appearing for the appellant invited our attention to a number of documents to show that the appellant was entitled to the benefit of Railway Boards Letter dated 9.8.61. Once such document was paragraph 644 of the Indian Railway Establishment Manual. It is the further case of the learned counsel for the appellant that the Tribunal, by mentioning only Clause (a) of Paragraph 644, rejected the claim of the appellant without referring to Clause (b) of the same Paragraph, which is relevant for his claim. He also invited our attention to the seniority list of the category of `CGIS, which, according to the learned counsel for the appellant, exempted the appellant from appearing in the Appendix-IIA examination. He also referred to two other documents dated 22.7.59 and 23.11.60 to further support his contention that the appellant was exempted from appearing in the Appendix IIA examination. In the light of the documents brought to the notice of this Court, learned counsel for the appellant submitted that the order of the Tribunal has to be set aside and the relief prayed for has to be granted. 6. Learned counsel appearing for the respondent-railways submitted that the document relied on by the learned counsel for the appellant will not help the appellant to get the increments, but will help him only to get promotion. 7. Before discussing the matter further, we would like to point out that having regard to the fact that the appellant retired and died pending appeal, we had directed the learned counsel appearing for the respondent to find out from the Railways whether they can settle the matter out of Court. Learned counsel for the respondent, after taking several adjournments, informed us that the respondents were not willing to settle the matter out of Court. 8. The learned counsel for the appellant was right when he contended that the Tribunal went wrong in deciding the issue against the appellant by noticing only Clause (a) of Paragraph 644 of the Manual without referring to Clause (b) of the same Paragraph.The relevant documents read as follows :1. The relevant position of Paragraph 644(a) and (b) of the Manual is given below :-"644. Clerks Grade II on promotion to post of Clerks Grade I in the Accounts Department :(a) Clerks Grade II promoted as Clerks Grade I on or after 1.5.61 by virtue of either passing Appendix II-A Examination or having been permanently exempted from passing that examination, will have the pay fixed at stage that would be arrived at by grant of four advance increments, in the grade of Clerks Grade I after normal fixation, subject to a minimum of Rs. 150/- as indicated below.(b) In the case of Clerks Grade I promoted before 1.5.61, the pay of all such staff, whether working in a permanent or officiating capacity, should be refixed on 1.5.61 as (a) above, with reference to the pay to which they would be entitled as Clerk Grade II, but for their promotion as Clerks Grade I and they should be allowed either the pay so refixed on 1.5.61 or their existing pay, whichever is more beneficial to them."2. Seniority List of Category of CGIS is given below:-Ref : FA & CAO(Adm) CCGs No.ADM IV/A2083/E-1030/10/0/Vol-III dated 24.11.69.3. Copy of Item No. 359 of Minutes of the Meeting with G.M. held on 21st and 22nd July, 1959, is given below :-"359. Graded staff transferred from Mech. Deptt. to Accounts Deptt.G.P.O. explained that according to the accounts memorandum of 18.9.1958 issued with the approval of GMS. The staff who were willing to go on transfer to the Accounts Deptt. were taken over permanently by the Accounts treating their transfer as in the interest of service thereby causing no loss in the seniority. He also stated that the staff of the Mech. Deptt. will get seniority in that grade in the Accounts Deptt. without having to pass any examination."4. The document dated 23.11.60 was one relating to Sub-graduation List of Staff as on 1.9.60. This document gives the seniority list of Clerks Grade-I and there is one column saying that the appellant was exempted from appearing in the Appendix-IIA examination.9. A careful perusal of Paragraph 644(b) of the Manual and the other documents, extracted above, namely, seniority list of the category CGIS exempting the appellant from the departmental examination, etc. will support the case of the appellant. It is not in dispute that had the Appellant been exempted from appearing in Appendix IIA examination, he was entitled to get 4 advance increments as provided in the Railway Boards letter dated 9.8.1961. Railway Boards letters paragraphs 1 and 2 are in identical terms with paragraph 644(a) and (b) of Indian Railway Establishment Manual. After perusing the documents produced before us, we are unable to agree with the learned counsel for the respondents that the documents referred to and relied upon by the learned counsel for the appellant, relate only to promotion and not to grant of increments. A conjoint reading of the above referred to documents will show that the appellant was exempted from appearing in the Appendix IIA examination not only for the purpose of seniority but also for the purpose of getting four advance increments under the Railway Boards Letter dated 9.8.61.10. In the result, the appeal succeeds and the respondents are directed to recalculate the salary of the deceased appellant after giving four increments from 1.5.61 and also the pensionary benefits. The additional amount now to be paid, as a result of re-calculation by the respondents, to the legal representatives of the deceased-appellant, will bear interest at the rate of 12% p.a.11. The appeal is accordingly allowed with costs, which we quantify at Rs. 5,000/-.
### Response:
1
### Explanation:
8. The learned counsel for the appellant was right when he contended that the Tribunal went wrong in deciding the issue against the appellant by noticing only Clause (a) of Paragraph 644 of the Manual without referring to Clause (b) of the same Paragraph.The relevant documents read as follows :1. The relevant position of Paragraph 644(a) and (b) of the Manual is given below :-"644. Clerks Grade II on promotion to post of Clerks Grade I in the Accounts Department :(a) Clerks Grade II promoted as Clerks Grade I on or after 1.5.61 by virtue of either passing Appendix II-A Examination or having been permanently exempted from passing that examination, will have the pay fixed at stage that would be arrived at by grant of four advance increments, in the grade of Clerks Grade I after normal fixation, subject to a minimum of Rs. 150/- as indicated below.(b) In the case of Clerks Grade I promoted before 1.5.61, the pay of all such staff, whether working in a permanent or officiating capacity, should be refixed on 1.5.61 as (a) above, with reference to the pay to which they would be entitled as Clerk Grade II, but for their promotion as Clerks Grade I and they should be allowed either the pay so refixed on 1.5.61 or their existing pay, whichever is more beneficial to them."2. Seniority List of Category of CGIS is given below:-Ref : FA & CAO(Adm) CCGs No.ADM IV/A2083/E-1030/10/0/Vol-III dated 24.11.69.3. Copy of Item No. 359 of Minutes of the Meeting with G.M. held on 21st and 22nd July, 1959, is given below :-"359. Graded staff transferred from Mech. Deptt. to Accounts Deptt.G.P.O. explained that according to the accounts memorandum of 18.9.1958 issued with the approval of GMS. The staff who were willing to go on transfer to the Accounts Deptt. were taken over permanently by the Accounts treating their transfer as in the interest of service thereby causing no loss in the seniority. He also stated that the staff of the Mech. Deptt. will get seniority in that grade in the Accounts Deptt. without having to pass any examination."4. The document dated 23.11.60 was one relating to Sub-graduation List of Staff as on 1.9.60. This document gives the seniority list of Clerks Grade-I and there is one column saying that the appellant was exempted from appearing in the Appendix-IIA examination.9. A careful perusal of Paragraph 644(b) of the Manual and the other documents, extracted above, namely, seniority list of the category CGIS exempting the appellant from the departmental examination, etc. will support the case of the appellant. It is not in dispute that had the Appellant been exempted from appearing in Appendix IIA examination, he was entitled to get 4 advance increments as provided in the Railway Boards letter dated 9.8.1961. Railway Boards letters paragraphs 1 and 2 are in identical terms with paragraph 644(a) and (b) of Indian Railway Establishment Manual. After perusing the documents produced before us, we are unable to agree with the learned counsel for the respondents that the documents referred to and relied upon by the learned counsel for the appellant, relate only to promotion and not to grant of increments. A conjoint reading of the above referred to documents will show that the appellant was exempted from appearing in the Appendix IIA examination not only for the purpose of seniority but also for the purpose of getting four advance increments under the Railway Boards Letter dated 9.8.61.10. In the result, the appeal succeeds and the respondents are directed to recalculate the salary of the deceased appellant after giving four increments from 1.5.61 and also the pensionary benefits. The additional amount now to be paid, as a result of re-calculation by the respondents, to the legal representatives of the deceased-appellant, will bear interest at the rate of 12% p.a.11. The appeal is accordingly allowed with costs, which we quantify at Rs. 5,000/-.Appeal allowed.
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M/s. Radhey Shyam Ratanlal & Another Vs. Commnr. of Customs (Adjudication), Mumbai | sale for delivery at the time and place of importation in the course of international trade where the seller and the buyer have no interest in the business of each other or one of them has no interest in the business of the other and the price is the sole consideration for the sale or offer for sale. By inserting sub-Section (1A) of Section 14 which was inserted with effect from 16.8.1988, it was provided that subject to the provisions of sub-Section (1) of Section 14, the price referred to in the sub-Section in respect of imported goods would be determined in accordance with the rules made in this behalf.20. Further, Rule 4 deals with the transaction value which is required to be determined under aforesaid rule. Under Rule 4 of the Valuation Rules, the transaction value of imported goods shall be the price actually paid or payable for the goods when sold for export to India. In accordance with the provisions of Rule 9, such transaction value is required to be accepted subject to the proviso to sub-Rule (2). But the expression used in Section 14 and Rule 4 clearly indicates that the transaction value of imported goods would be accepted as provided by sub-Rule (2) of Rule 4 but such value is always subject to the provision of sub-Section (1) of Section 14 in view of the opening expression used in sub-Section (1A) of Section 14 which opens with the expression "subject to the provisions of sub-Section (1) of Section 14." Therefore, the provisions of sub-Section (1) of Section 14 would prevail when the transaction value required to be determined under Rule 4 does not reflect the price at which such or like goods are ordinarily sold or offered for sale for delivery at the time and place of importation. There cannot be any dispute with regard to said interpretation that it is the provision which will always prevail. In other words the deemed value contemplated under Section 14(1) would prevail when the price declared does not reflect the price at which such or like goods are ordinarily sold or offered for sale for delivery at the time and place of importation. Under Rule 5, it is inter alia provided that the value of imported goods shall be the transaction value of identical goods sold for export to India and imported on or about the same time, good being valued subject to provisions of Rule 3. It is also provided in the said Rule that in applying the said rule the transaction value of identical goods and sale at the same commercial level and substantially of the same quantity, would be used to determine the value of the imported goods.21. We are required to apply the aforesaid provision to the facts and circumstances of the present case and when done so it would appear that the appellant although claimed a transaction value, but such value could not be supported by production of the original contract or the invoices relating to procurement of cloves to the appellant under the ten Bills of Entry in question. The said documents were called for and were directed to be produced, but same could not be produced. The alleged contract dated 23.11.2000 cannot be termed as a contract between the parties and it is merely a certificate issued by M/s. Ketan Trading Co.22. The respondent department has also relied upon the contemporaneous documents like the Weekly Bulletin of Spices Market and also the Public Ledger. The Weekly Bulletin of Spices Market published by the Trade Information Services of the Spices Board of the Ministry of Commerce and Industry, Government of India indicated that the price of Indonesian cloves on 24.11.2000 was US$ 4765 PMT and that of Zanzibar cloves was US$ 4650 PMT. Such bulletin also indicates that by 23.12.2001 the price of Zanzibar cloves had reached Rs.6100/- PMT. The Public Ledger which is also considered as International Publication of Report indicates that the price of cloves in the international market on 27.11.2000 was US Dollars 4700 which reached US Dollars 6300 on 26.3.2001.23. We are also satisfied with the records produced before us that the nature of business of M/s. Ketan Trading Co. is primarily dealing with sport goods and not cloves. There is also a reference of the document on record particularly the relevant bill of lading which indicates that cloves were imported by the appellants from IJIMASIA Pvt. Ltd. through M/s. Ketan Trading Co. at the price of US Dollars 5600 PMT through bill of entry dated 7.2.2001. The value of the said Zanzibar cloves were shown as US Dollars 5600 PMT. It has also come in evidence that 9.5648 MTs cloves of Indonesian origin shipped from Singapore imported by M/s. Spices Trading Corporation under bill of entry dated 8.5.2001 were bought at the rate of US Dollars 5500. The said consignment was shipped on 25.2.2001 as per the bill of lading. Another consignment of 9.300 MTs of cloves of Comoros origin was also imported by M/s. Spices Trading Corporation at the same unit price. A table of imports made by the appellants in the Bill of Entry in question is placed on record. The evidence therefore which exist on record clearly support the findings and the conclusions arrived at by the Commissioner of Customs (Adjudication), Mumbai and also by the Tribunal. The findings and conclusions cannot be said to be perverse. They are based on cogent reasons which are found to be forceful and reasonable. We find no reason and ground to take a different view than what is taken by the said two authorities.24. In our considered opinion, it is conclusively proved that the Department correctly imposed proper assessment value on the goods in question imported by the appellant. The said value for the purpose of assessment of the goods had been correctly arrived at in accordance with the provisions of the Acts and the Rules framed thereunder particularly in accordance with Rule 5 of the Valuation Rules. | 0[ds]17. The alleged transaction value claimed by the appellant was not accepted by the respondent mainly on the grounds namely inability to produce relevant documents and failure to prove and establish as to at what price the imported goods were purchased by the appellant. The same was also not accepted as it is indicated from the comparable rate that other persons and firms purchased same goods almost at the same relevant time at a higher rate.18. Counsel appearing for the appellant heavily relied on the document dated 23.11.2000 which is a document issued by M/s. Ketan Trading Co. The said letter is a certificate issued by M/s. Ketan Trading Company in favour of the appellant confirming that they had sold to the appellant, cloves of Zanzibar, Indonesia and Cameroon origin at US Dollars 2600 PMT CIF, Mumbai of a quantity of about 300 MTs. A bare perusal of the said document would indicate that the same is not a contract which was entered upon between the parties and it is merely a certificate issued by M/s. Ketan Trading Co. in favour of the appellant.19. We have extracted hereinbefore, the relevant part of the provision of Section 14 (1) (a) of the Customs Act and the relevant part of Rule 4, Rule 5 and Rule 10A of the Customs Valuation Rules. Section 14 of the Act relates to valuation of goods for the purpose of assessment and inter alia provides that the value of any goods chargeable to duty of customs would be deemed to be the price at which such or like goods are ordinarily sold or offered for sale for delivery at the time and place of importation in the course of international trade where the seller and the buyer have no interest in the business of each other or one of them has no interest in the business of the other and the price is the sole consideration for the sale or offer for sale. By inserting(1A) of Section 14 which was inserted with effect from 16.8.1988, it was provided that subject to the provisions of(1) of Section 14, the price referred to in thein respect of imported goods would be determined in accordance with the rules made in this behalf.20. Further, Rule 4 deals with the transaction value which is required to be determined under aforesaid rule. Under Rule 4 of the Valuation Rules, the transaction value of imported goods shall be the price actually paid or payable for the goods when sold for export to India. In accordance with the provisions of Rule 9, such transaction value is required to be accepted subject to the proviso to(2). But the expression used in Section 14 and Rule 4 clearly indicates that the transaction value of imported goods would be accepted as provided by(2) of Rule 4 but such value is always subject to the provision of(1) of Section 14 in view of the opening expression used in(1A) of Section 14 which opens with the expression "subject to the provisions of(1) of Section 14." Therefore, the provisions of(1) of Section 14 would prevail when the transaction value required to be determined under Rule 4 does not reflect the price at which such or like goods are ordinarily sold or offered for sale for delivery at the time and place of importation. There cannot be any dispute with regard to said interpretation that it is the provision which will always prevail. In other words the deemed value contemplated under Section 14(1) would prevail when the price declared does not reflect the price at which such or like goods are ordinarily sold or offered for sale for delivery at the time and place of importation. Under Rule 5, it is inter alia provided that the value of imported goods shall be the transaction value of identical goods sold for export to India and imported on or about the same time, good being valued subject to provisions of Rule 3. It is also provided in the said Rule that in applying the said rule the transaction value of identical goods and sale at the same commercial level and substantially of the same quantity, would be used to determine the value of the imported goods.21. We are required to apply the aforesaid provision to the facts and circumstances of the present case and when done so it would appear that the appellant although claimed a transaction value, but such value could not be supported by production of the original contract or the invoices relating to procurement of cloves to the appellant under the ten Bills of Entry in question. The said documents were called for and were directed to be produced, but same could not be produced. The alleged contract dated 23.11.2000 cannot be termed as a contract between the parties and it is merely a certificate issued by M/s. Ketan Trading Co.22. The respondent department has also relied upon the contemporaneous documents like the Weekly Bulletin of Spices Market and also the Public Ledger. The Weekly Bulletin of Spices Market published by the Trade Information Services of the Spices Board of the Ministry of Commerce and Industry, Government of India indicated that the price of Indonesian cloves on 24.11.2000 was US$ 4765 PMT and that of Zanzibar cloves was US$ 4650 PMT. Such bulletin also indicates that by 23.12.2001 the price of Zanzibar cloves had reached Rs.6100/PMT. The Public Ledger which is also considered as International Publication of Report indicates that the price of cloves in the international market on 27.11.2000 was US Dollars 4700 which reached US Dollars 6300 on 26.3.2001.23. We are also satisfied with the records produced before us that the nature of business of M/s. Ketan Trading Co. is primarily dealing with sport goods and not cloves. There is also a reference of the document on record particularly the relevant bill of lading which indicates that cloves were imported by the appellants from IJIMASIA Pvt. Ltd. through M/s. Ketan Trading Co. at the price of US Dollars 5600 PMT through bill of entry dated 7.2.2001. The value of the said Zanzibar cloves were shown as US Dollars 5600 PMT. It has also come in evidence that 9.5648 MTs cloves of Indonesian origin shipped from Singapore imported by M/s. Spices Trading Corporation under bill of entry dated 8.5.2001 were bought at the rate of US Dollars 5500. The said consignment was shipped on 25.2.2001 as per the bill of lading. Another consignment of 9.300 MTs of cloves of Comoros origin was also imported by M/s. Spices Trading Corporation at the same unit price. A table of imports made by the appellants in the Bill of Entry in question is placed on record. The evidence therefore which exist on record clearly support the findings and the conclusions arrived at by the Commissioner of Customs (Adjudication), Mumbai and also by the Tribunal. The findings and conclusions cannot be said to be perverse. They are based on cogent reasons which are found to be forceful and reasonable. We find no reason and ground to take a different view than what is taken by the said two authorities.24. In our considered opinion, it is conclusively proved that the Department correctly imposed proper assessment value on the goods in question imported by the appellant. The said value for the purpose of assessment of the goods had been correctly arrived at in accordance with the provisions of the Acts and the Rules framed thereunder particularly in accordance with Rule 5 of the Valuation Rules. | 0 | 3,931 | 1,360 | ### 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:
sale for delivery at the time and place of importation in the course of international trade where the seller and the buyer have no interest in the business of each other or one of them has no interest in the business of the other and the price is the sole consideration for the sale or offer for sale. By inserting sub-Section (1A) of Section 14 which was inserted with effect from 16.8.1988, it was provided that subject to the provisions of sub-Section (1) of Section 14, the price referred to in the sub-Section in respect of imported goods would be determined in accordance with the rules made in this behalf.20. Further, Rule 4 deals with the transaction value which is required to be determined under aforesaid rule. Under Rule 4 of the Valuation Rules, the transaction value of imported goods shall be the price actually paid or payable for the goods when sold for export to India. In accordance with the provisions of Rule 9, such transaction value is required to be accepted subject to the proviso to sub-Rule (2). But the expression used in Section 14 and Rule 4 clearly indicates that the transaction value of imported goods would be accepted as provided by sub-Rule (2) of Rule 4 but such value is always subject to the provision of sub-Section (1) of Section 14 in view of the opening expression used in sub-Section (1A) of Section 14 which opens with the expression "subject to the provisions of sub-Section (1) of Section 14." Therefore, the provisions of sub-Section (1) of Section 14 would prevail when the transaction value required to be determined under Rule 4 does not reflect the price at which such or like goods are ordinarily sold or offered for sale for delivery at the time and place of importation. There cannot be any dispute with regard to said interpretation that it is the provision which will always prevail. In other words the deemed value contemplated under Section 14(1) would prevail when the price declared does not reflect the price at which such or like goods are ordinarily sold or offered for sale for delivery at the time and place of importation. Under Rule 5, it is inter alia provided that the value of imported goods shall be the transaction value of identical goods sold for export to India and imported on or about the same time, good being valued subject to provisions of Rule 3. It is also provided in the said Rule that in applying the said rule the transaction value of identical goods and sale at the same commercial level and substantially of the same quantity, would be used to determine the value of the imported goods.21. We are required to apply the aforesaid provision to the facts and circumstances of the present case and when done so it would appear that the appellant although claimed a transaction value, but such value could not be supported by production of the original contract or the invoices relating to procurement of cloves to the appellant under the ten Bills of Entry in question. The said documents were called for and were directed to be produced, but same could not be produced. The alleged contract dated 23.11.2000 cannot be termed as a contract between the parties and it is merely a certificate issued by M/s. Ketan Trading Co.22. The respondent department has also relied upon the contemporaneous documents like the Weekly Bulletin of Spices Market and also the Public Ledger. The Weekly Bulletin of Spices Market published by the Trade Information Services of the Spices Board of the Ministry of Commerce and Industry, Government of India indicated that the price of Indonesian cloves on 24.11.2000 was US$ 4765 PMT and that of Zanzibar cloves was US$ 4650 PMT. Such bulletin also indicates that by 23.12.2001 the price of Zanzibar cloves had reached Rs.6100/- PMT. The Public Ledger which is also considered as International Publication of Report indicates that the price of cloves in the international market on 27.11.2000 was US Dollars 4700 which reached US Dollars 6300 on 26.3.2001.23. We are also satisfied with the records produced before us that the nature of business of M/s. Ketan Trading Co. is primarily dealing with sport goods and not cloves. There is also a reference of the document on record particularly the relevant bill of lading which indicates that cloves were imported by the appellants from IJIMASIA Pvt. Ltd. through M/s. Ketan Trading Co. at the price of US Dollars 5600 PMT through bill of entry dated 7.2.2001. The value of the said Zanzibar cloves were shown as US Dollars 5600 PMT. It has also come in evidence that 9.5648 MTs cloves of Indonesian origin shipped from Singapore imported by M/s. Spices Trading Corporation under bill of entry dated 8.5.2001 were bought at the rate of US Dollars 5500. The said consignment was shipped on 25.2.2001 as per the bill of lading. Another consignment of 9.300 MTs of cloves of Comoros origin was also imported by M/s. Spices Trading Corporation at the same unit price. A table of imports made by the appellants in the Bill of Entry in question is placed on record. The evidence therefore which exist on record clearly support the findings and the conclusions arrived at by the Commissioner of Customs (Adjudication), Mumbai and also by the Tribunal. The findings and conclusions cannot be said to be perverse. They are based on cogent reasons which are found to be forceful and reasonable. We find no reason and ground to take a different view than what is taken by the said two authorities.24. In our considered opinion, it is conclusively proved that the Department correctly imposed proper assessment value on the goods in question imported by the appellant. The said value for the purpose of assessment of the goods had been correctly arrived at in accordance with the provisions of the Acts and the Rules framed thereunder particularly in accordance with Rule 5 of the Valuation Rules.
### Response:
0
### Explanation:
would be deemed to be the price at which such or like goods are ordinarily sold or offered for sale for delivery at the time and place of importation in the course of international trade where the seller and the buyer have no interest in the business of each other or one of them has no interest in the business of the other and the price is the sole consideration for the sale or offer for sale. By inserting(1A) of Section 14 which was inserted with effect from 16.8.1988, it was provided that subject to the provisions of(1) of Section 14, the price referred to in thein respect of imported goods would be determined in accordance with the rules made in this behalf.20. Further, Rule 4 deals with the transaction value which is required to be determined under aforesaid rule. Under Rule 4 of the Valuation Rules, the transaction value of imported goods shall be the price actually paid or payable for the goods when sold for export to India. In accordance with the provisions of Rule 9, such transaction value is required to be accepted subject to the proviso to(2). But the expression used in Section 14 and Rule 4 clearly indicates that the transaction value of imported goods would be accepted as provided by(2) of Rule 4 but such value is always subject to the provision of(1) of Section 14 in view of the opening expression used in(1A) of Section 14 which opens with the expression "subject to the provisions of(1) of Section 14." Therefore, the provisions of(1) of Section 14 would prevail when the transaction value required to be determined under Rule 4 does not reflect the price at which such or like goods are ordinarily sold or offered for sale for delivery at the time and place of importation. There cannot be any dispute with regard to said interpretation that it is the provision which will always prevail. In other words the deemed value contemplated under Section 14(1) would prevail when the price declared does not reflect the price at which such or like goods are ordinarily sold or offered for sale for delivery at the time and place of importation. Under Rule 5, it is inter alia provided that the value of imported goods shall be the transaction value of identical goods sold for export to India and imported on or about the same time, good being valued subject to provisions of Rule 3. It is also provided in the said Rule that in applying the said rule the transaction value of identical goods and sale at the same commercial level and substantially of the same quantity, would be used to determine the value of the imported goods.21. We are required to apply the aforesaid provision to the facts and circumstances of the present case and when done so it would appear that the appellant although claimed a transaction value, but such value could not be supported by production of the original contract or the invoices relating to procurement of cloves to the appellant under the ten Bills of Entry in question. The said documents were called for and were directed to be produced, but same could not be produced. The alleged contract dated 23.11.2000 cannot be termed as a contract between the parties and it is merely a certificate issued by M/s. Ketan Trading Co.22. The respondent department has also relied upon the contemporaneous documents like the Weekly Bulletin of Spices Market and also the Public Ledger. The Weekly Bulletin of Spices Market published by the Trade Information Services of the Spices Board of the Ministry of Commerce and Industry, Government of India indicated that the price of Indonesian cloves on 24.11.2000 was US$ 4765 PMT and that of Zanzibar cloves was US$ 4650 PMT. Such bulletin also indicates that by 23.12.2001 the price of Zanzibar cloves had reached Rs.6100/PMT. The Public Ledger which is also considered as International Publication of Report indicates that the price of cloves in the international market on 27.11.2000 was US Dollars 4700 which reached US Dollars 6300 on 26.3.2001.23. We are also satisfied with the records produced before us that the nature of business of M/s. Ketan Trading Co. is primarily dealing with sport goods and not cloves. There is also a reference of the document on record particularly the relevant bill of lading which indicates that cloves were imported by the appellants from IJIMASIA Pvt. Ltd. through M/s. Ketan Trading Co. at the price of US Dollars 5600 PMT through bill of entry dated 7.2.2001. The value of the said Zanzibar cloves were shown as US Dollars 5600 PMT. It has also come in evidence that 9.5648 MTs cloves of Indonesian origin shipped from Singapore imported by M/s. Spices Trading Corporation under bill of entry dated 8.5.2001 were bought at the rate of US Dollars 5500. The said consignment was shipped on 25.2.2001 as per the bill of lading. Another consignment of 9.300 MTs of cloves of Comoros origin was also imported by M/s. Spices Trading Corporation at the same unit price. A table of imports made by the appellants in the Bill of Entry in question is placed on record. The evidence therefore which exist on record clearly support the findings and the conclusions arrived at by the Commissioner of Customs (Adjudication), Mumbai and also by the Tribunal. The findings and conclusions cannot be said to be perverse. They are based on cogent reasons which are found to be forceful and reasonable. We find no reason and ground to take a different view than what is taken by the said two authorities.24. In our considered opinion, it is conclusively proved that the Department correctly imposed proper assessment value on the goods in question imported by the appellant. The said value for the purpose of assessment of the goods had been correctly arrived at in accordance with the provisions of the Acts and the Rules framed thereunder particularly in accordance with Rule 5 of the Valuation Rules.
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Haryana Urban Dev. Authority Vs. Orchid Infrastructure Developers P.Ltd | by opening of the public gaze; these necessitate recording of reasons for executive actions including cases of rejection of highest offers. That very often involves large stakes and availability of reasons for actions on the record assures credibility to the action; disciplines public conduct and improves the culture of accountability. Looking for reasons in support of such action provides an opportunity for an objective review in appropriate cases both by the administrative superior and by the judicial process. The submission of Mr Dwivedi, therefore, commends itself to our acceptance, namely, that when highest offers of the type in question are rejected reasons sufficient to indicate the stand of the appropriate authority should be made available and ordinarily the same should be communicated to the concerned parties unless there be any specific justification not to do so. No doubt about it that there have to be some reasons for rejection of the bid which are adequately present in the instant case as discussed hereinabove. The decision is of no help to espouse the cause of the plaintiff. 31. Reliance has also been placed on a decision of this Court in Kalu Ram Ahuja & Anr. v. Delhi Development Authority & Anr. (2008) 10 SCC 696 in which this Court has laid down that the highest bid was rejected without assigning any reason and there was no record showing that the decision was based on rational and tangible reasons and was in public interest. In the instant case we are satisfied from the order that the reports were considered and what were the reports, has been made clear in the reply filed by the respondents which has not been controverted. In the instant case merely the bid being above the reserve price, was not a safe criteria to accept the same. 32. In Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors. (1978) 1 SCC 405 , this Court has laid down that when a statutory functionary makes an order, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. This Court has held thus : 8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji AIR 1952 SC 16 : Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older. There is no dispute from the aforesaid proposition. However, in the instant case reasons have been mentioned in the rejection order and the nature of reports has also been sufficiently explained. Thus the rejection of seven different bids in the auction reflects that there was due application of mind by the concerned authority and rejection could not be said to be illegal, arbitrary or sans of reason. 33. We are constrained to observe in the instant case that with respect to reserve price also, there was a hitch to fix and approve it right from the word go. It was a case of auction of big commercial tower having a huge area of 9.527 acres. Only the reserve price of the same was forwarded for fixation to the Chief Administrator, whereas the reserve prices of other properties were fixed by the Administrator. When the bids were received, the Administrator considering the huge stakes involved, forwarded the matter to the Chief Administrator. However, the Chief Administrator washed off his hands and did not decide it and sent the matter back to the Administrator, clearly indicating that the Administrator was delegated with the power to decide the bids. Thus, under compelling circumstances and duly considering the reports, the Administrator had taken the decision to reject the bids not only of the plaintiff but also six others. For the first time in the history of State of Haryana, such big properties were put to hammer on the prices indicated. The hitch in fixing the reserve price also indicates that the reserve price was not determined in a fair manner in the instant case. Not only the plaintiff but HUDA also did not place the delegation of power on record of the courts below. None of the officials of HUDA had been examined. Only an Assistant – a junior ranking person had been examined who was not posted there when the auction was held and came only in 2008. As the property was a commercial tower in Sector 29, Gurgaon, with huge commercial complex, the first appellate court was right in dismissing the suit. 34. Plaintiff came to the court for mandatory injunction, for issuance of allotment letter without payment of court fee also. It was incumbent upon the plaintiff to pay the ad valorem court fee as prevailing and the valuation of the suit should not have been less than the bid amount of Rs.111.75 crores, as rightly held by the first appellate court. The plaintiff is directed to pay the ad valorem court fee not only before the trial court but also before the High Court. Plaintiff is directed to deposit the court fee within two months from today, as payable. | 1[ds]13. Firstly, we examine the question whether there being no concluded contract in the absence of acceptance of bid and issuance of allotment letter, the suit could be said to be maintainable for the declaratory relief and mandatory injunction sought by the plaintiff. The plaintiff has prayed for a declaration that rejection of the bid was illegal. Merely by that, plaintiff could not have become entitled for consequential mandatory injunction for issuance of formal letter of allotment. Court while exercising judicial review could not have accepted the bid. The bid had never been accepted by concerned authorities. It was not a case of cancellation of bid after being accepted. Thus even assuming as per plaintiffs case that the Administrator was not equipped with the power and the Chief Administrator had the power to accept or refuse the bid, there had been no decision by the Chief Administrator. Thus, merely by declaration that rejection of the bid by the Administrator was illegal, the plaintiff could not have become entitled to consequential relief of issuance of allotment letter. Thus the suit, in the form it was filed, was not maintainable for relief sought in view of the fact that there was no concluded contract in the absence of allotment letter being issued to the plaintiff, which was a sine qua non for filing the civil suit14. It is a settled law that the highest bidder has no vested right to have the auction concluded in his favour. The Government or its authority could validly retain power to accept or reject the highest bid in the interest of public revenue. We are of the considered opinion that there was no right acquired and no vested right accrued in favour of the plaintiff merely because his bid amount was highest and had deposited 10% of the bid amount. As per Regulation 6(2) of the Regulations of 1978, allotment letter has to be issued on acceptance of the bid by the Chief Administrator and within 30 days thereof, the successful bidder has to deposit another 15% of the bid amount. In the instant case allotment letter has never been issued to the petitioner as per Regulation 6(2) in view of non-acceptance of the bid18. It is apparent that there had been delegation of power by HUDA to the Administrator with respect to the power to accept the auction bids for commercial/residential/industrial sites provided the highest bid is more than the reserve price and minimum of three bids have been received. The Administrator has also the power if the site is not sold in 3 attempts, to revise the price downwards up to a maximum of 10% of the reserve price. Thus plaintiff has not come to the court with clean hands and has suppressed for the reasons best known to it, the aforesaid order of HUDA by which delegation of power has been made.20. Admittedly, the Presiding Officer was the Administrator, HUDA. Thus, as per the terms of the auction also, the Administrator was having the power to accept or reject the bid. That the bid was more than the reserve price and there were more than 3 bidders, is not disputed. Thus, in our opinion, the Administrator had the power to reject the bid as per the delegation made to him on 13.9.198921. The learned counsel representing the plaintiff-respondent vehemently contended that there was no delegation of power under section 51(4) and it was the State Government only who could have delegated the power of the Chief Administrator as found by the High Court. As delegation had been made by HUDA under section 51(1) of the Act of 1977, it was incumbent upon the plaintiff to question it and assail the same. However, the plaintiff had feigned ignorance as to delegation on its part which does not inspire confidence as the line of arguments advanced on its behalf that no delegation was there under section 51(4) was clearly grounded upon the fact that the delegation made under section 51(1) was in fact to the knowledge of the plaintiff that is why the aforesaid argument had been advanced and unfortunately learned counsel for HUDA also conceded that there was no delegation of power made by the State Government under section 51(4). This was done by overlooking the delegation dated 13.9.1989, the factum whereof has not been controverted by the learned counsel appearing on behalf of the respondent in any manner whatsoever. In the absence of having questioned delegation made by HUDA under section 51(1) of the Act, plaintiff could not have succeeded in the suit22. The plaintiff has not questioned the delegation of power before the courts below in any manner whatsoever. We decline to examine the submission raised by learned counsel for the plaintiff in this Court that there is no delegation of power under section 51(4) and the power of the Chief Administrator could have been delegated only by the State Government not by HUDA under section 51(1) as per its order dated 13.9.1989. In the absence of challenge to legality of delegation order dated 13.9.1989, and the plaintiff being guilty of suppressio veri, it is not entitled to urge the aforesaid submission so as to invalidate the statutory delegation of power made by HUDA under section 51(1)23. In view of the aforesaid fact-situation, it is apparent that the Administrator had the power to reject a bid, not only being the Presiding Officer as per terms and condition N0.4 of auction but otherwise also he had the power, as discussed above. Thus, the decision of the High Court in setting aside the auction on the aforesaid ground cannot be said to be legally sustainable26. In our opinion when it is apparent from the communication that the reports were considered and what was contained in the report was very much pleaded in the written statement, mere non-production of report was not of any significance in the instant case. We are satisfied that the rejection of the bid by the Administrator was absolutely proper and justified and was beyond the pale of judicial scrutiny. The Administrator had the right to reject the bids and he had rejected it on sufficient ground, duly considering the materials on record as is apparent from the communication dated 21.9.2004. In the interest of the public, revenue of the State and in the interest of HUDA the huge property was saved from being plundered33. We are constrained to observe in the instant case that with respect to reserve price also, there was a hitch to fix and approve it right from the word go. It was a case of auction of big commercial tower having a huge area of 9.527 acres. Only the reserve price of the same was forwarded for fixation to the Chief Administrator, whereas the reserve prices of other properties were fixed by the Administrator. When the bids were received, the Administrator considering the huge stakes involved, forwarded the matter to the Chief Administrator. However, the Chief Administrator washed off his hands and did not decide it and sent the matter back to the Administrator, clearly indicating that the Administrator was delegated with the power to decide the bids. Thus, under compelling circumstances and duly considering the reports, the Administrator had taken the decision to reject the bids not only of the plaintiff but also six others. For the first time in the history of State of Haryana, such big properties were put to hammer on the prices indicated. The hitch in fixing the reserve price also indicates that the reserve price was not determined in a fair manner in the instant case. Not only the plaintiff but HUDA also did not place the delegation of power on record of the courts below. None of the officials of HUDA had been examined. Only an Assistant – a junior ranking person had been examined who was not posted there when the auction was held and came only in 2008. As the property was a commercial tower in Sector 29, Gurgaon, with huge commercial complex, the first appellate court was right in dismissing the suit34. Plaintiff came to the court for mandatory injunction, for issuance of allotment letter without payment of court fee also. It was incumbent upon the plaintiff to pay the ad valorem court fee as prevailing and the valuation of the suit should not have been less than the bid amount of Rs.111.75 crores, as rightly held by the first appellate court. The plaintiff is directed to pay the ad valorem court fee not only before the trial court but also before the High Court. Plaintiff is directed to deposit the court fee within two months from today, as payable | 1 | 9,246 | 1,585 | ### Instruction:
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by opening of the public gaze; these necessitate recording of reasons for executive actions including cases of rejection of highest offers. That very often involves large stakes and availability of reasons for actions on the record assures credibility to the action; disciplines public conduct and improves the culture of accountability. Looking for reasons in support of such action provides an opportunity for an objective review in appropriate cases both by the administrative superior and by the judicial process. The submission of Mr Dwivedi, therefore, commends itself to our acceptance, namely, that when highest offers of the type in question are rejected reasons sufficient to indicate the stand of the appropriate authority should be made available and ordinarily the same should be communicated to the concerned parties unless there be any specific justification not to do so. No doubt about it that there have to be some reasons for rejection of the bid which are adequately present in the instant case as discussed hereinabove. The decision is of no help to espouse the cause of the plaintiff. 31. Reliance has also been placed on a decision of this Court in Kalu Ram Ahuja & Anr. v. Delhi Development Authority & Anr. (2008) 10 SCC 696 in which this Court has laid down that the highest bid was rejected without assigning any reason and there was no record showing that the decision was based on rational and tangible reasons and was in public interest. In the instant case we are satisfied from the order that the reports were considered and what were the reports, has been made clear in the reply filed by the respondents which has not been controverted. In the instant case merely the bid being above the reserve price, was not a safe criteria to accept the same. 32. In Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors. (1978) 1 SCC 405 , this Court has laid down that when a statutory functionary makes an order, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. This Court has held thus : 8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji AIR 1952 SC 16 : Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older. There is no dispute from the aforesaid proposition. However, in the instant case reasons have been mentioned in the rejection order and the nature of reports has also been sufficiently explained. Thus the rejection of seven different bids in the auction reflects that there was due application of mind by the concerned authority and rejection could not be said to be illegal, arbitrary or sans of reason. 33. We are constrained to observe in the instant case that with respect to reserve price also, there was a hitch to fix and approve it right from the word go. It was a case of auction of big commercial tower having a huge area of 9.527 acres. Only the reserve price of the same was forwarded for fixation to the Chief Administrator, whereas the reserve prices of other properties were fixed by the Administrator. When the bids were received, the Administrator considering the huge stakes involved, forwarded the matter to the Chief Administrator. However, the Chief Administrator washed off his hands and did not decide it and sent the matter back to the Administrator, clearly indicating that the Administrator was delegated with the power to decide the bids. Thus, under compelling circumstances and duly considering the reports, the Administrator had taken the decision to reject the bids not only of the plaintiff but also six others. For the first time in the history of State of Haryana, such big properties were put to hammer on the prices indicated. The hitch in fixing the reserve price also indicates that the reserve price was not determined in a fair manner in the instant case. Not only the plaintiff but HUDA also did not place the delegation of power on record of the courts below. None of the officials of HUDA had been examined. Only an Assistant – a junior ranking person had been examined who was not posted there when the auction was held and came only in 2008. As the property was a commercial tower in Sector 29, Gurgaon, with huge commercial complex, the first appellate court was right in dismissing the suit. 34. Plaintiff came to the court for mandatory injunction, for issuance of allotment letter without payment of court fee also. It was incumbent upon the plaintiff to pay the ad valorem court fee as prevailing and the valuation of the suit should not have been less than the bid amount of Rs.111.75 crores, as rightly held by the first appellate court. The plaintiff is directed to pay the ad valorem court fee not only before the trial court but also before the High Court. Plaintiff is directed to deposit the court fee within two months from today, as payable.
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1
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price. Thus plaintiff has not come to the court with clean hands and has suppressed for the reasons best known to it, the aforesaid order of HUDA by which delegation of power has been made.20. Admittedly, the Presiding Officer was the Administrator, HUDA. Thus, as per the terms of the auction also, the Administrator was having the power to accept or reject the bid. That the bid was more than the reserve price and there were more than 3 bidders, is not disputed. Thus, in our opinion, the Administrator had the power to reject the bid as per the delegation made to him on 13.9.198921. The learned counsel representing the plaintiff-respondent vehemently contended that there was no delegation of power under section 51(4) and it was the State Government only who could have delegated the power of the Chief Administrator as found by the High Court. As delegation had been made by HUDA under section 51(1) of the Act of 1977, it was incumbent upon the plaintiff to question it and assail the same. However, the plaintiff had feigned ignorance as to delegation on its part which does not inspire confidence as the line of arguments advanced on its behalf that no delegation was there under section 51(4) was clearly grounded upon the fact that the delegation made under section 51(1) was in fact to the knowledge of the plaintiff that is why the aforesaid argument had been advanced and unfortunately learned counsel for HUDA also conceded that there was no delegation of power made by the State Government under section 51(4). This was done by overlooking the delegation dated 13.9.1989, the factum whereof has not been controverted by the learned counsel appearing on behalf of the respondent in any manner whatsoever. In the absence of having questioned delegation made by HUDA under section 51(1) of the Act, plaintiff could not have succeeded in the suit22. The plaintiff has not questioned the delegation of power before the courts below in any manner whatsoever. We decline to examine the submission raised by learned counsel for the plaintiff in this Court that there is no delegation of power under section 51(4) and the power of the Chief Administrator could have been delegated only by the State Government not by HUDA under section 51(1) as per its order dated 13.9.1989. In the absence of challenge to legality of delegation order dated 13.9.1989, and the plaintiff being guilty of suppressio veri, it is not entitled to urge the aforesaid submission so as to invalidate the statutory delegation of power made by HUDA under section 51(1)23. In view of the aforesaid fact-situation, it is apparent that the Administrator had the power to reject a bid, not only being the Presiding Officer as per terms and condition N0.4 of auction but otherwise also he had the power, as discussed above. Thus, the decision of the High Court in setting aside the auction on the aforesaid ground cannot be said to be legally sustainable26. In our opinion when it is apparent from the communication that the reports were considered and what was contained in the report was very much pleaded in the written statement, mere non-production of report was not of any significance in the instant case. We are satisfied that the rejection of the bid by the Administrator was absolutely proper and justified and was beyond the pale of judicial scrutiny. The Administrator had the right to reject the bids and he had rejected it on sufficient ground, duly considering the materials on record as is apparent from the communication dated 21.9.2004. In the interest of the public, revenue of the State and in the interest of HUDA the huge property was saved from being plundered33. We are constrained to observe in the instant case that with respect to reserve price also, there was a hitch to fix and approve it right from the word go. It was a case of auction of big commercial tower having a huge area of 9.527 acres. Only the reserve price of the same was forwarded for fixation to the Chief Administrator, whereas the reserve prices of other properties were fixed by the Administrator. When the bids were received, the Administrator considering the huge stakes involved, forwarded the matter to the Chief Administrator. However, the Chief Administrator washed off his hands and did not decide it and sent the matter back to the Administrator, clearly indicating that the Administrator was delegated with the power to decide the bids. Thus, under compelling circumstances and duly considering the reports, the Administrator had taken the decision to reject the bids not only of the plaintiff but also six others. For the first time in the history of State of Haryana, such big properties were put to hammer on the prices indicated. The hitch in fixing the reserve price also indicates that the reserve price was not determined in a fair manner in the instant case. Not only the plaintiff but HUDA also did not place the delegation of power on record of the courts below. None of the officials of HUDA had been examined. Only an Assistant – a junior ranking person had been examined who was not posted there when the auction was held and came only in 2008. As the property was a commercial tower in Sector 29, Gurgaon, with huge commercial complex, the first appellate court was right in dismissing the suit34. Plaintiff came to the court for mandatory injunction, for issuance of allotment letter without payment of court fee also. It was incumbent upon the plaintiff to pay the ad valorem court fee as prevailing and the valuation of the suit should not have been less than the bid amount of Rs.111.75 crores, as rightly held by the first appellate court. The plaintiff is directed to pay the ad valorem court fee not only before the trial court but also before the High Court. Plaintiff is directed to deposit the court fee within two months from today, as payable
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M/S. India Steamship Company Ltd. Vs. Union Of India & Anr. | filed this appeal. 4. Shri Dipanker Gupta, the learned senior counsel appearing for the appellant-company, has urged that the expression "substantial portion" in Section 115(1)(e) of the Customs Act must be construed to mean substantial portion of the goods which have been imported in the vessel. The submission is that the learned single Judge was right in proceeding on that basis and that the Division Bench of the High Court was in error in reversing the said view of the learned Single Judge. It has been contended that it could not be the intention of Parliament to provide for confiscation of the vessel in a case where a portion of a particular consignment, which may be substantial portion of that consignment, is found missing if the said portion which is found missing is insignificant as compared to the goods that have been imported in the vessel.Section 115(1)(e) of the Customs Act provides for confiscation of conveyances and reads as follows:- "115. Confiscation of conveyance, -(1) The following conveyance shall be liable t o confiscation-(a) X X X X X(b) X X X X X(c) X X X X X(d) X X X X Xe) any conveyance carrying imported goods which has entered India and is afterwards found with the whole or substantial portion of such goods missing, unless the master of the vessel or aircraft able to account for the loss of, or deficiency in, the goods." * 5. The said provision in Section 115(1)(e) differs from the earlier provision contained in clause (4) of Section 167 of the Sea Customs Act, 1878 which provided for the penalty of confiscation of the vessel in respect of following offences:- "4. If any vessel which has been within the limits of any port in India or within the Indian customs waters, with cargo on board, be afterwards found elsewhere in such waters or in any port, bay, river, creek or arm of the sea in India.(i) light or in ballast, or(ii) with any part of such cargo missing, and the master of the vessel is unable to give due account of how the vessel came to be light or in ballast, or of the missing cargo." * 6. Under the said provision in Section 167 the vessel was liable to be confiscated if any part of the cargo was missing and the master of the vessel was unable to give due account of the missing cargo. Section 115(1) (e) reduces the rigour of the said provision by introducing the requirement that substantial portion of the goods must be found missing to attract the liability of confiscation of the vessel. 7. Section 115(1)(e) contains the expression "any conveyance carrying imported goods". These words refer to the goods which are being imported by the vessel in the country, i.e., the imported goods which are contained in the vessel. The words "such goods" in the expression "whole or substantial portion of such goods" refer to the goods which have been imported in the vessel and, therefore, the said expression must be construed as referring to the whole or substantial portion of the goods which have been imported in the vessel. This means t hat what should be found missing is the whole or substantial portion of the goods that have been imported in the vessel. The learned Judges on the Division Bench of the High Court have pointed out that a difficulty may arise in ascertaining whether the substantial portion of goods is missing by giving an illustration where 100 tonnes of wheat and 4 gold bars were imported in a vessel and out of the 4 gold bars 3 gold bars were found missing and have observed that in such a case if we go by the quantity of the imported goods the owner of the vessel can not be punished by confiscation of the vessel itself even though smuggling of 3 gold bars has taken place and that this could not have been the intention of the legislature. In out opinion, the said illustration does not pose any difficulty because the expression "substantial portion of such goods" in Section 115(1)(e) has been used to mean substantial portion of the goods that have been imported keeping in view the quantity as well as the value of the goods that have been imported. If it is found that the goods found missing were a substantial portion of the goods that have been imported having regard to the quantity of goods or the value of the goods imported, the provisions of Section 115(1)(e) would be attracted. The object underlying the said provision for confiscation of the vessel is to check evasion of customs duty. It seeks to achieve this object by ensuring that after the vessel has entered India the master of the vessel accounts for the goods which have been imported and by providing that if the whole or substantial portion of the imported goods is found missing and the master of the vessel is not able to account for the loss or deficiency in the goods, the vessel would be liable to be confiscated. But, at the same time, it cannot be ignored that the confiscation of the vessel would result in imposing a heavy financial burden on the owner of the vessel. In providing for confiscation of the vessel in Section 115(1)(e) it could not have been the intention of Parliament to penalise the owner of the vessel in a case where a portion, even though substantial, of a particular consignment of goods is found to be missing although the said consignment is only an insignificant part both in the matter of quantity as well as value of the goods that have been imported in the vessel.Applying the aforesaid test, 45, 000 cigarettes that were found missing cannot be held to be a substantial portion of the goods that were imported either in the matter of quantity or in the matter of value of the goods that were imported in the vessel. 8. | 1[ds]Section 115(1)(e) contains the expression "any conveyance carrying imported goods". These words refer to the goods which are being imported by the vessel in the country, i.e., the imported goods which are contained in the vessel. The words "such goods" in the expression "whole or substantial portion of such goods" refer to the goods which have been imported in the vessel and, therefore, the said expression must be construed as referring to the whole or substantial portion of the goods which have been imported in the vessel. This meanswhat should be found missing is the whole or substantial portion of the goods that have been imported in the vessel. The learned Judges on the Division Bench of the High Court have pointed out that a difficulty may arise in ascertaining whether the substantial portion of goods is missing by giving an illustration where 100 tonnes of wheat and 4 gold bars were imported in a vessel and out of the 4 gold bars 3 gold bars were found missing and have observed that in such a case if we go by the quantity of the imported goods the owner of the vessel can not be punished by confiscation of the vessel itself even though smuggling of 3 gold bars has taken place and that this could not have been the intention of then, the said illustration does not pose any difficulty because the expression "substantial portion of such goods" in Section 115(1)(e) has been used to mean substantial portion of the goods that have been imported keeping in view the quantity as well as the value of the goods that have been imported. If it is found that the goods found missing were a substantial portion of the goods that have been imported having regard to the quantity of goods or the value of the goods imported, the provisions of Section 115(1)(e) would be attracted. The object underlying the said provision for confiscation of the vessel is to check evasion of customs duty. It seeks to achieve this object by ensuring that after the vessel has entered India the master of the vessel accounts for the goods which have been imported and by providing that if the whole or substantial portion of the imported goods is found missing and the master of the vessel is not able to account for the loss or deficiency in the goods, the vessel would be liable to be confiscated. But, at the same time, it cannot be ignored that the confiscation of the vessel would result in imposing a heavy financial burden on the owner of the vessel. In providing for confiscation of the vessel in Section 115(1)(e) it could not have been the intention of Parliament to penalise the owner of the vessel in a case where a portion, even though substantial, of a particular consignment of goods is found to be missing although the said consignment is only an insignificant part both in the matter of quantity as well as value of the goods that have been imported in the vessel.Applying the aforesaid test, 45, 000 cigarettes that were found missing cannot be held to be a substantial portion of the goods that were imported either in the matter of quantity or in the matter of value of the goods that were imported in the vessel. | 1 | 2,621 | 615 | ### Instruction:
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filed this appeal. 4. Shri Dipanker Gupta, the learned senior counsel appearing for the appellant-company, has urged that the expression "substantial portion" in Section 115(1)(e) of the Customs Act must be construed to mean substantial portion of the goods which have been imported in the vessel. The submission is that the learned single Judge was right in proceeding on that basis and that the Division Bench of the High Court was in error in reversing the said view of the learned Single Judge. It has been contended that it could not be the intention of Parliament to provide for confiscation of the vessel in a case where a portion of a particular consignment, which may be substantial portion of that consignment, is found missing if the said portion which is found missing is insignificant as compared to the goods that have been imported in the vessel.Section 115(1)(e) of the Customs Act provides for confiscation of conveyances and reads as follows:- "115. Confiscation of conveyance, -(1) The following conveyance shall be liable t o confiscation-(a) X X X X X(b) X X X X X(c) X X X X X(d) X X X X Xe) any conveyance carrying imported goods which has entered India and is afterwards found with the whole or substantial portion of such goods missing, unless the master of the vessel or aircraft able to account for the loss of, or deficiency in, the goods." * 5. The said provision in Section 115(1)(e) differs from the earlier provision contained in clause (4) of Section 167 of the Sea Customs Act, 1878 which provided for the penalty of confiscation of the vessel in respect of following offences:- "4. If any vessel which has been within the limits of any port in India or within the Indian customs waters, with cargo on board, be afterwards found elsewhere in such waters or in any port, bay, river, creek or arm of the sea in India.(i) light or in ballast, or(ii) with any part of such cargo missing, and the master of the vessel is unable to give due account of how the vessel came to be light or in ballast, or of the missing cargo." * 6. Under the said provision in Section 167 the vessel was liable to be confiscated if any part of the cargo was missing and the master of the vessel was unable to give due account of the missing cargo. Section 115(1) (e) reduces the rigour of the said provision by introducing the requirement that substantial portion of the goods must be found missing to attract the liability of confiscation of the vessel. 7. Section 115(1)(e) contains the expression "any conveyance carrying imported goods". These words refer to the goods which are being imported by the vessel in the country, i.e., the imported goods which are contained in the vessel. The words "such goods" in the expression "whole or substantial portion of such goods" refer to the goods which have been imported in the vessel and, therefore, the said expression must be construed as referring to the whole or substantial portion of the goods which have been imported in the vessel. This means t hat what should be found missing is the whole or substantial portion of the goods that have been imported in the vessel. The learned Judges on the Division Bench of the High Court have pointed out that a difficulty may arise in ascertaining whether the substantial portion of goods is missing by giving an illustration where 100 tonnes of wheat and 4 gold bars were imported in a vessel and out of the 4 gold bars 3 gold bars were found missing and have observed that in such a case if we go by the quantity of the imported goods the owner of the vessel can not be punished by confiscation of the vessel itself even though smuggling of 3 gold bars has taken place and that this could not have been the intention of the legislature. In out opinion, the said illustration does not pose any difficulty because the expression "substantial portion of such goods" in Section 115(1)(e) has been used to mean substantial portion of the goods that have been imported keeping in view the quantity as well as the value of the goods that have been imported. If it is found that the goods found missing were a substantial portion of the goods that have been imported having regard to the quantity of goods or the value of the goods imported, the provisions of Section 115(1)(e) would be attracted. The object underlying the said provision for confiscation of the vessel is to check evasion of customs duty. It seeks to achieve this object by ensuring that after the vessel has entered India the master of the vessel accounts for the goods which have been imported and by providing that if the whole or substantial portion of the imported goods is found missing and the master of the vessel is not able to account for the loss or deficiency in the goods, the vessel would be liable to be confiscated. But, at the same time, it cannot be ignored that the confiscation of the vessel would result in imposing a heavy financial burden on the owner of the vessel. In providing for confiscation of the vessel in Section 115(1)(e) it could not have been the intention of Parliament to penalise the owner of the vessel in a case where a portion, even though substantial, of a particular consignment of goods is found to be missing although the said consignment is only an insignificant part both in the matter of quantity as well as value of the goods that have been imported in the vessel.Applying the aforesaid test, 45, 000 cigarettes that were found missing cannot be held to be a substantial portion of the goods that were imported either in the matter of quantity or in the matter of value of the goods that were imported in the vessel. 8.
### Response:
1
### Explanation:
Section 115(1)(e) contains the expression "any conveyance carrying imported goods". These words refer to the goods which are being imported by the vessel in the country, i.e., the imported goods which are contained in the vessel. The words "such goods" in the expression "whole or substantial portion of such goods" refer to the goods which have been imported in the vessel and, therefore, the said expression must be construed as referring to the whole or substantial portion of the goods which have been imported in the vessel. This meanswhat should be found missing is the whole or substantial portion of the goods that have been imported in the vessel. The learned Judges on the Division Bench of the High Court have pointed out that a difficulty may arise in ascertaining whether the substantial portion of goods is missing by giving an illustration where 100 tonnes of wheat and 4 gold bars were imported in a vessel and out of the 4 gold bars 3 gold bars were found missing and have observed that in such a case if we go by the quantity of the imported goods the owner of the vessel can not be punished by confiscation of the vessel itself even though smuggling of 3 gold bars has taken place and that this could not have been the intention of then, the said illustration does not pose any difficulty because the expression "substantial portion of such goods" in Section 115(1)(e) has been used to mean substantial portion of the goods that have been imported keeping in view the quantity as well as the value of the goods that have been imported. If it is found that the goods found missing were a substantial portion of the goods that have been imported having regard to the quantity of goods or the value of the goods imported, the provisions of Section 115(1)(e) would be attracted. The object underlying the said provision for confiscation of the vessel is to check evasion of customs duty. It seeks to achieve this object by ensuring that after the vessel has entered India the master of the vessel accounts for the goods which have been imported and by providing that if the whole or substantial portion of the imported goods is found missing and the master of the vessel is not able to account for the loss or deficiency in the goods, the vessel would be liable to be confiscated. But, at the same time, it cannot be ignored that the confiscation of the vessel would result in imposing a heavy financial burden on the owner of the vessel. In providing for confiscation of the vessel in Section 115(1)(e) it could not have been the intention of Parliament to penalise the owner of the vessel in a case where a portion, even though substantial, of a particular consignment of goods is found to be missing although the said consignment is only an insignificant part both in the matter of quantity as well as value of the goods that have been imported in the vessel.Applying the aforesaid test, 45, 000 cigarettes that were found missing cannot be held to be a substantial portion of the goods that were imported either in the matter of quantity or in the matter of value of the goods that were imported in the vessel.
|
Puran Lal Sah Vs. State Of U.P | also based on the same assumption that the availability of the stone at 26 Chains-was a condition of the contract namely that once stone was not available at 26 Chains the contract was at an end and that because the Appellant had done the work he should be paid on the basis of quantum meruit. This in our view is a far-fetched argument arid has no relation to the facts and circumstances of the case. Even assuming that the stand taken by the Appellant that the availability of stone at 26 Chains was a condition of the contract was justified, he had notwithstanding the rejection of his claim even before he started the work, acquiesced in the stand taken by the Respondents that he is not entitled to any higher rates, carried on and completed the contract as if there was no such condition. We, therefore, cannot understand the contention of the Appellants Advocate as to how the contract came to an end and who put an end to it. Even if at that stage the contract had been put an end to by the Respondents which is no ones case, as the Appellant had not started the work no question of quantum merit would arise. The principle of quantum meruit is rooted in English law under which there were certain procedural advantages in framing an action for compensation for work done. In order to avail of the remedy under quantum meruit, the original contract must have been discharged by the Defendant in such a way as to entitle the Plaintiff to regard himself as discharged from any further performance and he must have elected to do so. The remedy it may be noticed is however, not available to the party who breaks the contract even though he may have partially performed part of his obligation. This remedy by way of quantum meruit is restitutory that is it is a recompense for the value of the work done by the Plaintiff in order to restore him to the position which he would have been in if the contract had never been entered into. In this regard it is different to a claim for damages which is a compensatory remedy aimed at placing the injured party, as near as may be in the position which he would have been in, had the other party performed the contract. This Court had in Alopi Parshad and Sons Ltd. v Union of India, 1960-2 SOR 793 = (AIR 1960 SC 588 ) observed at p. 809 (of SCR) = (at p. 595 of AIR):"Compensation quantum meruit is awarded for work done or services rendered when the price thereof is not fixed by a contract. For work done or services rendered pursuant to the terms of a contract compensation quantum meruit cannot be awarded where the contract provides for consideration payable in that behalf". Though in that case the basis of the principle was not explained, it nonetheless lays down that where work is done under a contract pursuant to the terms thereof no amount can be claimed by way of quantum meruit. In the view we have taken on the facts of the case we do not propose to examine the decisions cited at the Bar in this behalf. The claim of the Appellant for higher rates which in fact was by way of damages has been rightly disallowed by the High Court."14. On the second question also the Appellant cannot succeed because under clause 12 of the contract Ex. Bl. the Plaintiff was bound to perform additional work which was required of him on the same terms and conditions on which he undertook to do the work for which he tendered. It appears that by a subsidiary contract entered into between the Appellant and the P. W. D. Ex B3 on the 12th April, 1946, the Appellant undertook to execute some additional work for the Department. The quantity of work which appellant actually performed was far in excess of what was mentioned in Ex. B3. The Appellant therefore claimed payment for the work done by him in excess of the quantity mentioned in the contract plus 30 per cent at the current rate as against the stipulated rates. It was submitted on behalf of the State of U. P. before the High Court that under clause 12 of the contract Ex. Bl and paragraph 5 of the special instructions the plaintiff was not entitled to any amount in excess of what he had already been paid. This contention was accepted because under the aforesaid clause 12 the con tractor was bound to perform ail additional work which was required of him on the same terms and conditions in which he undertook to do the main work. Paragraph 5 of the special instructions further provides as follows:"Contractors must be prepared to do at their original tender rate work in excess of the given quantities of work upto 30 per cent; if an increase in excess of 30 per cent is ordered over the work the contractor must intimate to the Engineer Incharge in writing his willingness or refusal to do extra work at the originally tendered rates. In the latter case he should settle fresh rate for increased work over 30 per cent before doing the work".These instructions being part and parcel of the original contract Ex. B1 would govern the parties. As such the Appellant unless he gave notice under that paragraph that he is not prepared to do the extra work over the 30% at normal rates, he cannot claim anything other than at the rates mentioned in the contract, unless he had settled fresh rates for that extra work. There is no evidence nor is it claimed by the Appellant that he had given any notice as required under paragraph 5 of special instructions and since he did the work without fulfilling these requirements he is not entitled to claim any amounts at a higher rate for the extra work done. | 0[ds]6. It is obvious from these clauses that the rates are given in Schedule B on the basis of certain plans and specifications. The person intending to tender for the work was required to examine this material and also inspect the site before tendering. These instructions were designed to make all those who were desirous of obtaining the contract responsible for their acts so that it cannot be said that any misrepresentation was made or they were misguided in any way. The contention of the learned Advocate for Appellant is that it was definitely stated in the estimates that stone was available at 26 Chains which representation was binding an the Respondents and if no stone was available within that distance he was entitled to claim higher rates if he had to get stone from places farther away. In fact the Appellant alleges that the Engineers assured him that he would be paid highermere fact that the estimates were prepared by the PWD) on the basis of the stone being available at 26 Chains which Respondents admitted as stated in the Judgment of Civil Judge, Nainital does not mean that there was any assurance or undertaking given that stone would be available at that place. In fact it is not denied that stone was available within the distance of 26 Chains but it was in the area belonging to the Cantonment, for the removal of which permission of the Cantonment authorities had to be taken. Evidently the contractor was not able to obtain that permission. In our view it was upto the contractor to have satisfied himself before entering into the contract that the Cantonment authorities would permit him to take stone from its jurisdiction just in the same way as permission will have to be taken from any private individual in whose land stone required for road building is found. If the contractor has failed successfully to negotiate with the owners of land from which he could bring stone it cannot be said that the estimate prepared by the PWD on the basis that the stone was available at 26 Chains was a statement which amounted to an assurance or constituted a condition of the contract.It is clear from this evidence that the Appellant before giving the tender inspected the site, went to the place where stone was said to be available and after satisfying himself that the stone was available he gave the tender. A perusal of the documentary evidence would also show that he actually commenced work after his request to allow him higher rate was rejected which was long after the time when under the contract he was required to start the work.It cannot therefore be said that the Appellant was in any way induced by any assurances given by the P. W. D. authorities that they would give a higher rate for the extra lead before he commenced work The case of the Appellant in these letters was that no stone was available within half a mile while in his deposition he gave a contrary version altogether.This letter seems to be a recommendatory letter by a subordinate to the higher officer but it does not in any way establish the right of the Appellant to obtain a higher rate, nor does the evidence justify this conclusion. In our view neither the terms and conditions of the contract nor the oral or documentary evidence justify the conclusion that the Appellant was entitled to any extrain our view is a far-fetched argument arid has no relation to the facts and circumstances of the case. Even assuming that the stand taken by the Appellant that the availability of stone at 26 Chains was a condition of the contract was justified, he had notwithstanding the rejection of his claim even before he started the work, acquiesced in the stand taken by the Respondents that he is not entitled to any higher rates, carried on and completed the contract as if there was no such condition. We, therefore, cannot understand the contention of the Appellants Advocate as to how the contract came to an end and who put an end to it. Even if at that stage the contract had been put an end to by the Respondents which is no ones case, as the Appellant had not started the work no question of quantum merit would arise. The principle of quantum meruit is rooted in English law under which there were certain procedural advantages in framing an action for compensation for work done. In order to avail of the remedy under quantum meruit, the original contract must have been discharged by the Defendant in such a way as to entitle the Plaintiff to regard himself as discharged from any further performance and he must have elected to do so. The remedy it may be noticed is however, not available to the party who breaks the contract even though he may have partially performed part of his obligation. This remedy by way of quantum meruit is restitutory that is it is a recompense for the value of the work done by the Plaintiff in order to restore him to the position which he would have been in if the contract had never been entered into. In this regard it is different to a claim for damages which is a compensatory remedy aimed at placing the injured party, as near as may be in the position which he would have been in, had the other party performed the contract.On the second question also the Appellant cannot succeed because under clause 12 of the contract Ex. Bl. the Plaintiff was bound to perform additional work which was required of him on the same terms and conditions on which he undertook to do the work for which he tendered. It appears that by a subsidiary contract entered into between the Appellant and the P. W. D. Ex B3 on the 12th April, 1946, the Appellant undertook to execute some additional work for the Department. The quantity of work which appellant actually performed was far in excess of what was mentioned in Ex. B3. The Appellant therefore claimed payment for the work done by him in excess of the quantity mentioned in the contract plus 30 per cent at the current rate as against the stipulated rates. It was submitted on behalf of the State of U. P. before the High Court that under clause 12 of the contract Ex. Bl and paragraph 5 of the special instructions the plaintiff was not entitled to any amount in excess of what he had already been paid. This contention was accepted because under the aforesaid clause 12 the con tractor was bound to perform ail additional work which was required of him on the same terms and conditions in which he undertook to do the maininstructions being part and parcel of the original contract Ex. B1 would govern the parties. As such the Appellant unless he gave notice under that paragraph that he is not prepared to do the extra work over the 30% at normal rates, he cannot claim anything other than at the rates mentioned in the contract, unless he had settled fresh rates for that extra work. There is no evidence nor is it claimed by the Appellant that he had given any notice as required under paragraph 5 of special instructions and since he did the work without fulfilling these requirements he is not entitled to claim any amounts at a higher rate for the extra work done. | 0 | 3,729 | 1,318 | ### Instruction:
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also based on the same assumption that the availability of the stone at 26 Chains-was a condition of the contract namely that once stone was not available at 26 Chains the contract was at an end and that because the Appellant had done the work he should be paid on the basis of quantum meruit. This in our view is a far-fetched argument arid has no relation to the facts and circumstances of the case. Even assuming that the stand taken by the Appellant that the availability of stone at 26 Chains was a condition of the contract was justified, he had notwithstanding the rejection of his claim even before he started the work, acquiesced in the stand taken by the Respondents that he is not entitled to any higher rates, carried on and completed the contract as if there was no such condition. We, therefore, cannot understand the contention of the Appellants Advocate as to how the contract came to an end and who put an end to it. Even if at that stage the contract had been put an end to by the Respondents which is no ones case, as the Appellant had not started the work no question of quantum merit would arise. The principle of quantum meruit is rooted in English law under which there were certain procedural advantages in framing an action for compensation for work done. In order to avail of the remedy under quantum meruit, the original contract must have been discharged by the Defendant in such a way as to entitle the Plaintiff to regard himself as discharged from any further performance and he must have elected to do so. The remedy it may be noticed is however, not available to the party who breaks the contract even though he may have partially performed part of his obligation. This remedy by way of quantum meruit is restitutory that is it is a recompense for the value of the work done by the Plaintiff in order to restore him to the position which he would have been in if the contract had never been entered into. In this regard it is different to a claim for damages which is a compensatory remedy aimed at placing the injured party, as near as may be in the position which he would have been in, had the other party performed the contract. This Court had in Alopi Parshad and Sons Ltd. v Union of India, 1960-2 SOR 793 = (AIR 1960 SC 588 ) observed at p. 809 (of SCR) = (at p. 595 of AIR):"Compensation quantum meruit is awarded for work done or services rendered when the price thereof is not fixed by a contract. For work done or services rendered pursuant to the terms of a contract compensation quantum meruit cannot be awarded where the contract provides for consideration payable in that behalf". Though in that case the basis of the principle was not explained, it nonetheless lays down that where work is done under a contract pursuant to the terms thereof no amount can be claimed by way of quantum meruit. In the view we have taken on the facts of the case we do not propose to examine the decisions cited at the Bar in this behalf. The claim of the Appellant for higher rates which in fact was by way of damages has been rightly disallowed by the High Court."14. On the second question also the Appellant cannot succeed because under clause 12 of the contract Ex. Bl. the Plaintiff was bound to perform additional work which was required of him on the same terms and conditions on which he undertook to do the work for which he tendered. It appears that by a subsidiary contract entered into between the Appellant and the P. W. D. Ex B3 on the 12th April, 1946, the Appellant undertook to execute some additional work for the Department. The quantity of work which appellant actually performed was far in excess of what was mentioned in Ex. B3. The Appellant therefore claimed payment for the work done by him in excess of the quantity mentioned in the contract plus 30 per cent at the current rate as against the stipulated rates. It was submitted on behalf of the State of U. P. before the High Court that under clause 12 of the contract Ex. Bl and paragraph 5 of the special instructions the plaintiff was not entitled to any amount in excess of what he had already been paid. This contention was accepted because under the aforesaid clause 12 the con tractor was bound to perform ail additional work which was required of him on the same terms and conditions in which he undertook to do the main work. Paragraph 5 of the special instructions further provides as follows:"Contractors must be prepared to do at their original tender rate work in excess of the given quantities of work upto 30 per cent; if an increase in excess of 30 per cent is ordered over the work the contractor must intimate to the Engineer Incharge in writing his willingness or refusal to do extra work at the originally tendered rates. In the latter case he should settle fresh rate for increased work over 30 per cent before doing the work".These instructions being part and parcel of the original contract Ex. B1 would govern the parties. As such the Appellant unless he gave notice under that paragraph that he is not prepared to do the extra work over the 30% at normal rates, he cannot claim anything other than at the rates mentioned in the contract, unless he had settled fresh rates for that extra work. There is no evidence nor is it claimed by the Appellant that he had given any notice as required under paragraph 5 of special instructions and since he did the work without fulfilling these requirements he is not entitled to claim any amounts at a higher rate for the extra work done.
### Response:
0
### Explanation:
our view it was upto the contractor to have satisfied himself before entering into the contract that the Cantonment authorities would permit him to take stone from its jurisdiction just in the same way as permission will have to be taken from any private individual in whose land stone required for road building is found. If the contractor has failed successfully to negotiate with the owners of land from which he could bring stone it cannot be said that the estimate prepared by the PWD on the basis that the stone was available at 26 Chains was a statement which amounted to an assurance or constituted a condition of the contract.It is clear from this evidence that the Appellant before giving the tender inspected the site, went to the place where stone was said to be available and after satisfying himself that the stone was available he gave the tender. A perusal of the documentary evidence would also show that he actually commenced work after his request to allow him higher rate was rejected which was long after the time when under the contract he was required to start the work.It cannot therefore be said that the Appellant was in any way induced by any assurances given by the P. W. D. authorities that they would give a higher rate for the extra lead before he commenced work The case of the Appellant in these letters was that no stone was available within half a mile while in his deposition he gave a contrary version altogether.This letter seems to be a recommendatory letter by a subordinate to the higher officer but it does not in any way establish the right of the Appellant to obtain a higher rate, nor does the evidence justify this conclusion. In our view neither the terms and conditions of the contract nor the oral or documentary evidence justify the conclusion that the Appellant was entitled to any extrain our view is a far-fetched argument arid has no relation to the facts and circumstances of the case. Even assuming that the stand taken by the Appellant that the availability of stone at 26 Chains was a condition of the contract was justified, he had notwithstanding the rejection of his claim even before he started the work, acquiesced in the stand taken by the Respondents that he is not entitled to any higher rates, carried on and completed the contract as if there was no such condition. We, therefore, cannot understand the contention of the Appellants Advocate as to how the contract came to an end and who put an end to it. Even if at that stage the contract had been put an end to by the Respondents which is no ones case, as the Appellant had not started the work no question of quantum merit would arise. The principle of quantum meruit is rooted in English law under which there were certain procedural advantages in framing an action for compensation for work done. In order to avail of the remedy under quantum meruit, the original contract must have been discharged by the Defendant in such a way as to entitle the Plaintiff to regard himself as discharged from any further performance and he must have elected to do so. The remedy it may be noticed is however, not available to the party who breaks the contract even though he may have partially performed part of his obligation. This remedy by way of quantum meruit is restitutory that is it is a recompense for the value of the work done by the Plaintiff in order to restore him to the position which he would have been in if the contract had never been entered into. In this regard it is different to a claim for damages which is a compensatory remedy aimed at placing the injured party, as near as may be in the position which he would have been in, had the other party performed the contract.On the second question also the Appellant cannot succeed because under clause 12 of the contract Ex. Bl. the Plaintiff was bound to perform additional work which was required of him on the same terms and conditions on which he undertook to do the work for which he tendered. It appears that by a subsidiary contract entered into between the Appellant and the P. W. D. Ex B3 on the 12th April, 1946, the Appellant undertook to execute some additional work for the Department. The quantity of work which appellant actually performed was far in excess of what was mentioned in Ex. B3. The Appellant therefore claimed payment for the work done by him in excess of the quantity mentioned in the contract plus 30 per cent at the current rate as against the stipulated rates. It was submitted on behalf of the State of U. P. before the High Court that under clause 12 of the contract Ex. Bl and paragraph 5 of the special instructions the plaintiff was not entitled to any amount in excess of what he had already been paid. This contention was accepted because under the aforesaid clause 12 the con tractor was bound to perform ail additional work which was required of him on the same terms and conditions in which he undertook to do the maininstructions being part and parcel of the original contract Ex. B1 would govern the parties. As such the Appellant unless he gave notice under that paragraph that he is not prepared to do the extra work over the 30% at normal rates, he cannot claim anything other than at the rates mentioned in the contract, unless he had settled fresh rates for that extra work. There is no evidence nor is it claimed by the Appellant that he had given any notice as required under paragraph 5 of special instructions and since he did the work without fulfilling these requirements he is not entitled to claim any amounts at a higher rate for the extra work done.
|
Puranlal Lakhanpal Vs. The President Of India And Others | what the President has actually done in the matter of modification of Art. 81. The modification prescribes that the six seats in the House of the People from the State of Jammu and Kashmir would be filled by nomination by the President on the recommendation of the Legislature of that State. Now in form the seats will be filled by nomination by the President; but in reality what the modification provides is indirect election in place of direct election to these seats in the House of the People. The modification lays down that the President will nominate members to these six seats on the recommendation of the Legislature of the State. The President must, therefore, nominate only those who have been recommended by the Legislature of the State, which is elected on adult suffrage. Now the only way the Legislature can make a recommendation for this purpose is by voting. Therefore, in effect the modification made by the President is that the six seats to the House of the People from the State of Jammu and Kashmir will be filled by indirect election and not by direct election. The element of election still remains in the matter of filling these seats, though it has been made indirect. In these circumstances it may not be possible to say that there has been a radical alteration in Art. 81 by the modification effected by the Order.4. But even assuming that the introduction of indirect election by this modification is a radical alteration of the provisions of Art. 81(1), the question still remains whether such a modification is justified by the word "modification" as used in Art. 370(1). We are here dealing with the provision of a Constitution which cannot be interpreted in any narrow or pedantic sense. The question that came for consideration in In re Delhi Laws Act case, 1951 SCR 747 : (AIR 1951 SC 332 ), was with respect to the power of delegation to a subordinate authority in making subordinate legislation. It was in that context that the observations were made that the intention of the law there under consideration when it used the word "modification" was that the Central Government would extent certain laws of Part C States without any radical alteration in them. But in the present case we have to find out the meaning of the word "modification" used in Art. 370(1) in the context of the Constitution. As we have said already the object behind enacting Art. 370(1) was to recognise the special position of the State of Jammu and Kashmir and to provide for that special position by giving power to the President to apply the provisions of the Constitution to that State with such exceptions and modifications as the President might by order specify. We have already pointed out that the power to make exceptions implies that the President can provide that a particular provision of the Constitution would not apply to that State. If, therefore, the power is given to the President to efface in effect any provision of the Constitution altogether in its application to the State of Jammu and Kashmir it seems that when he is also given the power to make modifications that power should be considered in its widest possible amplitude. If he could efface a particular provision of the Constitution altogether in its application to the State of Jammu and Kashmir, we see no reason to think that the Constitution did not intend that he should have the power to amend a particular provision in its application to the State of Jammu and Kashmir. It seems to us that when the Constitution used the word "modification" in Art. 370(1) the intention was that the President would have the power to amend the provisions of the Constitution if he so thought fit in their application to the State of Jammu and Kashmir. In the Oxford English Dictionary (Vol. VI) the word "modify" means inter alia "to make partial changes in; to change (as object) in respect of some of its qualities; to alter or vary without redical transformation." Similarly the word "modification" means "the action of making changes in an object without altering its essential nature or character; the state of being thus changed; partial alteration." Stress is being placed on the meaning "to alter or vary without redical transformation" on behalf of the petitioner; but that is not the only meaning of the word "modify" or "modification". The word "modify" also means "to make partial changes in" and "modification" means "partial alteration". If, therefore, the President changed the method of direct election to indirect election he was in essence making a partial change or partial alteration in Art. 81 and, therefore, the modification made in the present case would be even within the dictionary meaning of that word. But, in law, the word "modify" has even a wider meaning. In "Words and Phrases" by Roland Burrows, the primary meaning of the word "modify" is given as "to limit" or "restrict" but it also means "to vary" and may even mean to "extend" or "enlarge." Thus in law the word "modify" may just mean "vary", i.e., amend; and when Art. 370(1) says that the President may apply the provisions of the Constitution to the State of Jammu and Kashmir with such modifications as he may by order specify it means that he may vary (i.e., amend) the provisions the Constitution in its application to the State of Jammu and Kashmir. We are therefore of opinion that in the context of the Constitution we must give the widest effect to the meaning of the word "modification" used in Art. 370 (1) and in that sense it includes an amendment. There is no reason to limit the word "modifications" as used in Art. 370(1) only to such modifications as do not make any "radical transformation." We are therefore of opinion that the President had the power to make the modification which he did in Art. 81 of the Constitution. | 0[ds]The President thus has power to say by order that certain provisions of the Constitution will be excepted from application to the State of Jammu and Kashmir and on such order being made those provisions would not apply to that State. Besides this power of making exceptions by which certain provisions of the Constitution were not to apply to that State the President is also given the power to apply the provisions of the Constitution with such modifications as he thinks fit toPresident must, therefore, nominate only those who have been recommended by the Legislature of the State, which is elected on adult suffrage. Now the only way the Legislature can make a recommendation for this purpose is by voting. Therefore, in effect the modification made by the President is that the six seats to the House of the People from the State of Jammu and Kashmir will be filled by indirect election and not by direct election. The element of election still remains in the matter of filling these seats, though it has been made indirect. In these circumstances it may not be possible to say that there has been a radical alteration in Art. 81 by the modification effected by thewe have said already the object behind enacting Art. 370(1) was to recognise the special position of the State of Jammu and Kashmir and to provide for that special position by giving power to the President to apply the provisions of the Constitution to that State with such exceptions and modifications as the President might by order specify. We have already pointed out that the power to make exceptions implies that the President can provide that a particular provision of the Constitution would not apply to that State. If, therefore, the power is given to the President to efface in effect any provision of the Constitution altogether in its application to the State of Jammu and Kashmir it seems that when he is also given the power to make modifications that power should be considered in its widest possible amplitude. If he could efface a particular provision of the Constitution altogether in its application to the State of Jammu and Kashmir, we see no reason to think that the Constitution did not intend that he should have the power to amend a particular provision in its application to the State of Jammu and Kashmir. It seems to us that when the Constitution used the word "modification" in Art. 370(1) the intention was that the President would have the power to amend the provisions of the Constitution if he so thought fit in their application to the State of Jammu and"Words and Phrases" by Roland Burrows, the primary meaning of the word "modify" is given as "to limit" or "restrict" but it also means "to vary" and may even mean to "extend" or "enlarge." Thus in law the word "modify" may just mean "vary", i.e., amend; and when Art. 370(1) says that the President may apply the provisions of the Constitution to the State of Jammu and Kashmir with such modifications as he may by order specify it means that he may vary (i.e., amend) the provisions the Constitution in its application to the State of Jammu and Kashmir. We are therefore of opinion that in the context of the Constitution we must give the widest effect to the meaning of the word "modification" used in Art. 370 (1) and in that sense it includes an amendment. There is no reason to limit the word "modifications" as used in Art. 370(1) only to such modifications as do not make any "radical transformation." We are therefore of opinion that the President had the power to make the modification which he did in Art. 81 of the Constitution. | 0 | 2,007 | 708 | ### 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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what the President has actually done in the matter of modification of Art. 81. The modification prescribes that the six seats in the House of the People from the State of Jammu and Kashmir would be filled by nomination by the President on the recommendation of the Legislature of that State. Now in form the seats will be filled by nomination by the President; but in reality what the modification provides is indirect election in place of direct election to these seats in the House of the People. The modification lays down that the President will nominate members to these six seats on the recommendation of the Legislature of the State. The President must, therefore, nominate only those who have been recommended by the Legislature of the State, which is elected on adult suffrage. Now the only way the Legislature can make a recommendation for this purpose is by voting. Therefore, in effect the modification made by the President is that the six seats to the House of the People from the State of Jammu and Kashmir will be filled by indirect election and not by direct election. The element of election still remains in the matter of filling these seats, though it has been made indirect. In these circumstances it may not be possible to say that there has been a radical alteration in Art. 81 by the modification effected by the Order.4. But even assuming that the introduction of indirect election by this modification is a radical alteration of the provisions of Art. 81(1), the question still remains whether such a modification is justified by the word "modification" as used in Art. 370(1). We are here dealing with the provision of a Constitution which cannot be interpreted in any narrow or pedantic sense. The question that came for consideration in In re Delhi Laws Act case, 1951 SCR 747 : (AIR 1951 SC 332 ), was with respect to the power of delegation to a subordinate authority in making subordinate legislation. It was in that context that the observations were made that the intention of the law there under consideration when it used the word "modification" was that the Central Government would extent certain laws of Part C States without any radical alteration in them. But in the present case we have to find out the meaning of the word "modification" used in Art. 370(1) in the context of the Constitution. As we have said already the object behind enacting Art. 370(1) was to recognise the special position of the State of Jammu and Kashmir and to provide for that special position by giving power to the President to apply the provisions of the Constitution to that State with such exceptions and modifications as the President might by order specify. We have already pointed out that the power to make exceptions implies that the President can provide that a particular provision of the Constitution would not apply to that State. If, therefore, the power is given to the President to efface in effect any provision of the Constitution altogether in its application to the State of Jammu and Kashmir it seems that when he is also given the power to make modifications that power should be considered in its widest possible amplitude. If he could efface a particular provision of the Constitution altogether in its application to the State of Jammu and Kashmir, we see no reason to think that the Constitution did not intend that he should have the power to amend a particular provision in its application to the State of Jammu and Kashmir. It seems to us that when the Constitution used the word "modification" in Art. 370(1) the intention was that the President would have the power to amend the provisions of the Constitution if he so thought fit in their application to the State of Jammu and Kashmir. In the Oxford English Dictionary (Vol. VI) the word "modify" means inter alia "to make partial changes in; to change (as object) in respect of some of its qualities; to alter or vary without redical transformation." Similarly the word "modification" means "the action of making changes in an object without altering its essential nature or character; the state of being thus changed; partial alteration." Stress is being placed on the meaning "to alter or vary without redical transformation" on behalf of the petitioner; but that is not the only meaning of the word "modify" or "modification". The word "modify" also means "to make partial changes in" and "modification" means "partial alteration". If, therefore, the President changed the method of direct election to indirect election he was in essence making a partial change or partial alteration in Art. 81 and, therefore, the modification made in the present case would be even within the dictionary meaning of that word. But, in law, the word "modify" has even a wider meaning. In "Words and Phrases" by Roland Burrows, the primary meaning of the word "modify" is given as "to limit" or "restrict" but it also means "to vary" and may even mean to "extend" or "enlarge." Thus in law the word "modify" may just mean "vary", i.e., amend; and when Art. 370(1) says that the President may apply the provisions of the Constitution to the State of Jammu and Kashmir with such modifications as he may by order specify it means that he may vary (i.e., amend) the provisions the Constitution in its application to the State of Jammu and Kashmir. We are therefore of opinion that in the context of the Constitution we must give the widest effect to the meaning of the word "modification" used in Art. 370 (1) and in that sense it includes an amendment. There is no reason to limit the word "modifications" as used in Art. 370(1) only to such modifications as do not make any "radical transformation." We are therefore of opinion that the President had the power to make the modification which he did in Art. 81 of the Constitution.
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The President thus has power to say by order that certain provisions of the Constitution will be excepted from application to the State of Jammu and Kashmir and on such order being made those provisions would not apply to that State. Besides this power of making exceptions by which certain provisions of the Constitution were not to apply to that State the President is also given the power to apply the provisions of the Constitution with such modifications as he thinks fit toPresident must, therefore, nominate only those who have been recommended by the Legislature of the State, which is elected on adult suffrage. Now the only way the Legislature can make a recommendation for this purpose is by voting. Therefore, in effect the modification made by the President is that the six seats to the House of the People from the State of Jammu and Kashmir will be filled by indirect election and not by direct election. The element of election still remains in the matter of filling these seats, though it has been made indirect. In these circumstances it may not be possible to say that there has been a radical alteration in Art. 81 by the modification effected by thewe have said already the object behind enacting Art. 370(1) was to recognise the special position of the State of Jammu and Kashmir and to provide for that special position by giving power to the President to apply the provisions of the Constitution to that State with such exceptions and modifications as the President might by order specify. We have already pointed out that the power to make exceptions implies that the President can provide that a particular provision of the Constitution would not apply to that State. If, therefore, the power is given to the President to efface in effect any provision of the Constitution altogether in its application to the State of Jammu and Kashmir it seems that when he is also given the power to make modifications that power should be considered in its widest possible amplitude. If he could efface a particular provision of the Constitution altogether in its application to the State of Jammu and Kashmir, we see no reason to think that the Constitution did not intend that he should have the power to amend a particular provision in its application to the State of Jammu and Kashmir. It seems to us that when the Constitution used the word "modification" in Art. 370(1) the intention was that the President would have the power to amend the provisions of the Constitution if he so thought fit in their application to the State of Jammu and"Words and Phrases" by Roland Burrows, the primary meaning of the word "modify" is given as "to limit" or "restrict" but it also means "to vary" and may even mean to "extend" or "enlarge." Thus in law the word "modify" may just mean "vary", i.e., amend; and when Art. 370(1) says that the President may apply the provisions of the Constitution to the State of Jammu and Kashmir with such modifications as he may by order specify it means that he may vary (i.e., amend) the provisions the Constitution in its application to the State of Jammu and Kashmir. We are therefore of opinion that in the context of the Constitution we must give the widest effect to the meaning of the word "modification" used in Art. 370 (1) and in that sense it includes an amendment. There is no reason to limit the word "modifications" as used in Art. 370(1) only to such modifications as do not make any "radical transformation." We are therefore of opinion that the President had the power to make the modification which he did in Art. 81 of the Constitution.
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RAJ PAL SINGH Vs. COMMISSIONER OF INCOME TAX HARYANA, ROHTAK | the assessee was divested of the title to the property, that vested in the Government with effect from 04.09.1972, the date of taking over possession. Hence, the ITAT held that the capital gains arising from the said acquisition were not assessable for the accounting period relevant for the assessment year 1975-1976. 43.1. Learned counsel for the appellant has strenuously argued that the revenue is not entitled to take a different stand in the present case pertaining to the assessment year 1971–1972, after having accepted the said decision pertaining to the assessment year 1975–1976 where it was held that capital gains accrued on the date of taking over possession of the land under acquisition by the Government. The learned counsel has relied upon the following observations in Berger Paints India Ltd. (supra):- In view of the judgments of this court in Union of India v. Kaumudini Narayan Dalal [2001] 249 ITR 219 ; CIT v. Narendra Doshi [2002] 254 ITR 606 and CIT v. Shivsagar Estate [2002] 257 ITR 59 , the principle established is that if the Revenue has not challenged the correctness of the law laid down by the High Court and has accepted it in the case of one assessee, then it is not open to the Revenue to challenge its correctness in the case of other assessees, without just cause. 44. The question is whether the above-noted observations apply to the present case? In our view, the answer to this question is clearly in the negative for more than one reason. 44.1. In the first place, it is ex facie evident that the matter involved in the said case pertaining to the assessment year 1975-1976 was taken to be an acquisition under the urgency provision contained in Section 17 of the Act of 1894 whereas, the acquisition proceedings in the present case had not been of urgency acquisition but had been of ordinary process where possession could have been taken only under Section 16 after making of the award. As noticed, the very structure of the ordinary process leading to possession under Section 16 of the Act of 1894 has been different than that of the urgency process under Section 17; and the said decision pertaining to the proceedings under Section 17 of the Act of 1894 cannot be directly applied to the present case. 44.2. Secondly, the fact that the said case relating to the assessment year 1975-1976 was not akin to the present case was indicated by the ITAT itself. As noticed, both the cases, i.e., the present one relating to the assessment year 1971-1972 (in ITA No. 634/Chandi/84) and that relating to the assessment year 1975-1976 (in ITA No. 635/Chandi/84) were decided by ITAT on the same date i.e., 19.12.1985. While the answer in relation to the assessment year 1975-1976 was given by the ITAT in favour of assessee-appellant to the effect that possession having been taken on the specified date i.e., 04.09.1972, capital gains were not assessable for the assessment year 1975-1976 but, while deciding the appeal relating to the present case for the assessment year 1971-1972, the ITAT found that the date of taking over possession was not available and hence, the matter was restored to the file of the ITO to find out the actual date of possession. 44.3. Thirdly, even if we assume that the stand of revenue in the present case is not in conformity with the decision of ITAT in relation to the assessment year 1975-1976, it cannot be said that revenue has no just cause to take such a stand. As noticed, while rendering the decision in relation to the assessment year 1975-1976, the ITAT did not notice the principles available in various decisions including that of this Court in Avinash Sharma (supra) that even in the case of urgency acquisition under Section 17 of the Act of 1894, land was to vest in Government not on the date of taking over possession but, only on the expiration of fifteen days from the publication of the notice mentioned in Section 9(1). Looking to the facts of the present case and the law applicable, in our view, the revenue had every reason to question the correctness of the later decision of ITAT dated 29.06.1990 in the second round of proceedings pertaining to the assessment year 1971-1972. 44.4. Fourthly, the ITAT itself on being satisfied about the question of law involved in this case, made a reference by its order dated 15.07.1991 to the High Court. The High Court having dealt with the matter in the reference proceedings and having answered the reference in conformity with the applicable principles, the assessee cannot be heard to question the stand of the revenue with reference to the other order for the assessment year 1975-1976. In any case, it cannot be said that the decision in relation to the assessment year 1975-1976 had been of any such nature which would preclude the revenue from raising the issues which are germane to the present case. 45. Hence, the answer to Point No. 2 is also clearly in the negative i.e., against the assessee-appellant and in favour of the revenue that the fact situation of the present case relating to the assessment year 1971-1972 is not similar to that of the other case of the appellant relating to the assessment year 1975-1976 and the revenue is not precluded from taking the stand that the transfer of capital asset in the present case was complete only on the date of award i.e., on 29.09.1970. Conclusion 46. For what has been discussed hereinabove, we have not an iota of doubt that in the second round of proceeding, the AO had rightly assessed the tax liability of the appellant, on long-term capital gains arising on account of acquisition, on the basis of the amount of compensation allowed in the award dated 29.09.1970 as also the enhanced amount of compensation accrued finally to the appellant; and as regards interest income, had rightly made protective assessment on accrual basis. | 0[ds]29.1. As noticed, capital gains are those profits or gains which arise out of the transfer of capital asset. The expression capital asset is defined in Section 2(14) of the Act of 1961. In the present case, much dilation on this definition is not required because the subject land had indisputably been a capital asset of the assessee-appellant. We may, however, observe that such definition of capital asset is of wide amplitude, taking in its fold the property of any kind held by an assessee, except what has been expressively excluded therein, like stock-in-trade, consumables stores, personal effects, etc.29.2. The expression transfer in relation to a capital asset has been defined in Section 2(47) of the Act of 1961. The said definition has also been of substantially wide amplitude so as to include sale, exchange or relinquishment of a capital asset; or extinguishment of any rights therein; or compulsory acquisition thereof. It is also noteworthy that as per the fundamentals in the Act of 1882, transfer of property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons.29.3. Thus, the contents of the then existing Section 45 of the Act of 1961 read with the relevant definitions would make it clear that such profits or gains are chargeable to income-tax as capital gains that arise out of the transfer of a capital asset by any of the recognized modes, including sale, exchange, relinquishment and even compulsory acquisition; and, by fiction, it has been provided that such profits or gains shall be deemed to be the income of the previous year in which transfer took place. Differently put, capital gains of an assessee, arising from transfer of capital asset, are chargeable to tax as income of the previous year in which transfer had taken place.30. Applying the aforesaid concepts of transfer and transfer of property to the facts of the present case, it could be readily found that when the subject land has been compulsorily acquired, its transfer from the assessee-appellant to the Government is directly covered by Section 2(47) of the Act of 1961.30.1. Thus, the basic elements for chargeability of the gains, arising from compulsory acquisition of the subject land, to income-tax under the head capital gains, do exist in the present case. However, the gains so arising would be deemed to be the income of the previous year in which transfer took place.Ordinarily, in such matters of compulsory acquisition, there is a structured process prescribed by law, which is required to be complied with for a lawful acquisition and which has the legal effect of transfer of ownership of the property in question to the acquiring body, usually the appropriate Government. The controversy in the present matter has its genesis in the compulsory acquisition of the land of assessee-appellant under the Act of 1894 and hence, pertinent it would be to look at the processes contemplated by the said enactment.31.1. A brief overview of the scheme of the Act of 1894, as existing at the relevant point of time, makes it clear that publication of preliminary notification under Section 4 by itself did not vest the property in the Government; it only informed about the intention of the Government to acquire the land for a public purpose. After this notification, in the ordinary course, under Section 5A, the Land Acquisition Collector was required to examine the objection, if any, to the proposed acquisition; and after examining his report, if so made, the Government was to issue declaration under Section 6, signifying its satisfaction that the land was indeed required for public purpose. These steps were to be followed by notice under Section 9, stating that the Government intended to take possession of the land and inviting claims for compensation. Thereafter, the Collector was to make his award under Section 11. As noticed hereinbefore, as per Section 16 of the Act of 1894, the Land Acquisition Collector, after making the award, could have taken possession of the land under acquisition and thereupon, the land vested in the Government free from all encumbrances.31.2. A deviation from the process above-noted and a somewhat different process was permissible in Section 17 of the Act of 1894 whereunder, in cases of urgency and if the Government had so directed, the Collector could have taken possession of any waste or arable land after fifteen days from the publication of the notice mentioned in Section 9(1), even though the award had not been made; and thereupon, the land was to vest in the Government free from all encumbrances.31.5. The expositions aforesaid leave nothing for debate that in the matter of compulsory acquisition of land under the Act of 1894 for public purpose, the property was to vest absolutely in the Government (thereby divesting the owner of all his rights therein) only after taking of possession in either of the methods i.e., after making of award, as provided in Section 16; or earlier than making of award, as provided in Section 17. In other words, the owner was divested of the property and same vested in the Government in absolute terms only if, and after, the possession was taken by either of the processes envisaged in Sections 16 and 17. However, so long as possession was not taken, the mere fact of issuance of notification under Section 4 of the Act of 1894 or declaration under Section 6 thereof, did not divest the owner of his right in respect of the property in question.32.1. The features above-noticed, relating to completion of transfer by way of compulsory acquisition under the Act of 1894 upon taking of possession by the Government; and such event of taking possession being the relevant happening for the purpose of Section 45 of the Act of 1961, were duly applied by the Courts in various decisions related with taxing of capital gains.As an example, we may usefully refer to a decision of Karnataka High Court in the case of Buddaiah v. Commissioner of Income-Tax, Karnataka-2: (1985) 155 ITR 277 wherein, the High Court referred to the aforesaid decision of this Court in Fruit & Vegetable Merchants Union and held that since title of land passes to the Government on possession being taken by the Deputy Commissioner under Section 16 of the Act of 1894, such date of taking possession becomes relevant for the purposes of Section 45 of the Act of 1961. The High Court said (at p. 281 of ITR),-The assessees contention, therefore, is contrary to the provisions of s. 16 of the Land Acquisition Act. Since the title of the owner of the lands acquired under the Land Acquisition Act passes to the Government on possession being taken by the Deputy Commissioner under s. 16 of the Act, the date of taking possession becomes relevant for purposes of s. 45 of the I.T. Act, so far as transfer of title is concerned.(emphasis in bold supplied)33. However, the propositions aforesaid do not directly apply to a case where, for any reason, possession of the land had already been taken by the Government or delivered by the owner before completion of process envisaged by Section 16 or Section 17 of the Act of 1894. In such a case, the question, obviously, would be as to when has capital gain accrued? And this is the core of the present matter.33.1. Taking up the core question, as to when capital gains would accrue in a case of compulsory acquisition of land where possession had already been taken before reaching of the relevant stage for taking over possession in the structured process contemplated by the statute, we may usefully refer to the decision of Andhra Pradesh High Court in the case of S. Appala Narasamma v. Commissioner of Income-Tax: (1987) 168 ITR 17. Therein, the land of the assessee was acquired for the Town Planning Trust but, during the course of land acquisition proceedings, possession of the land was delivered voluntarily by the assessee to the Town Planning Trust on 25.03.1970. The award of compensation was made on 22.03.1971. In the assessment proceedings, the question arose, as to in which year did the capital gain arise? Thus, similar question was involved therein, i.e., as to whether the land must be deemed to have vested in the State on the date when the possession was taken with the consent of the landlord or on the date of award? The Tribunal took the view that the land vested in the Government on the date of making of the award and this conclusion was affirmed by the High Court. While dealing with the principles relating to vesting of title and examining the fact situation where possession was taken before making of award, the High Court held that vesting of title to the land was a matter of law and not a matter of inference; and in the given situation, the moment the award was made, possession from that moment onwards should be related to the award; and on that date, the land vested in the Government. The High Court said (at pp. 20 and 21 of ITR),-Vesting of title to the land is a matter of law, not a matter of inference. This is a case of transfer of property by operation of law and the relevant statute clearly provides the situations in which the land vests, viz., section 16, section 17(1) and section 17(2). According to these provisions, the taking of possession per se does not bring about vesting; the taking of possession must be consequent upon passing of an award (section 16) or an order contemplated by section 17(1), or in a situation contemplated by section 17(2). The Act does not provide for taking of possession before the passing of the award, except in situations contemplated by section 17 (1) and (2). The question is what is the reasonable view to take in such a situation? Should we relate back the award to the date of taking possession or should we relate the possession already taken to the date of the award? We think it more reasonable, and consistent with the provisions of the Act, to adopt the latter view. Since possession taken before the award continues to be with the Government, we must say that the moment the award is passed, possession from that moment onwards should be related to the award. It is on that date that the land vests in the Government.(emphasis in bold supplied)33.1.1. While affirming that in the given set of facts, the liability to tax for capital gains arose on the date of award, the High Court referred to various decisions on relating back, of the possession previously taken, to the date envisaged by the Act of 1894; and took guidance, inter alia, from the following enunciation by this Court in the case of Lt. Governor of Himachal Pradesh v. Avinash Sharma: (1971) 1 SCR 413 :-In the present case a notification under s. 17 (1) and (4) was issued by the State Government and possession which had previously been taken must, from the date of expiry of fifteen days from the publication of the notice under s. 9(1), be deemed to be the possession of the Government. We are unable to agree that where the Government has obtained possession illegally or under some unlawful transaction and a notification under s. 17(1) is issued the land does not vest in the Government free from all encumbrances. We are of the view that when a notification under s. 17(1) is issued, on the expiration of fifteen days from the publication of the notice mentioned in s. 9(1), the possession previously obtained will be deemed to be the possession of the Government under s. 17(1) of the Act and the land will vest in the Government free from all encumbrances.(emphasis in bold supplied)34. Before dilating on the principles aforesaid, we may refer to the decisions cited by the learned counsel for the parties but, while pointing out at once that the said decisions are not of direct application to the present case for, they essentially relate to the right to receive compensation and not about the date of vesting of the land, with which we are concerned in the present matter.34.1.3. The principles aforesaid, that the right to receive compensation comes into being the moment Government takes possession of the property acquired; and the right to receive interest also accrues at the point of time when the right to receive compensation accrues and runs day to day, do not correspondingly result in completion of transfer of the property under acquisition and accrual of such a gain that may classify as capital gain. As noticed, in the matters of compulsory acquisition, accrual of capital gain depends upon completion of transfer of property from the owner to the Government and not upon accrual of right to receive compensation. Therefore, reference to the decision in Peter John (supra) is entirely inapt in the present case.34.2. In the case of Rama Bai (supra), this Court dealt with a batch of appeals and references essentially involving the question regarding the point of time at which the interest payable under Sections 28 and 34 of the Act of 1894 accrues or arises, where such interest is paid on enhanced compensation awarded on a reference under Section 18 or on further appeal to the High Court and/or the Supreme Court. This Court found that the issue stood concluded by the decision in Commissioner of Income- Tax v. Govindrajulu Chetty (T.N.K.): [1987] 165 ITR 231 ; and it was held that the interest cannot be taken to have accrued on the date of the order granting enhanced compensation but has to be taken as having accrued year after year from the date of delivery of possession. This Court said as under:-. Obviously, the decision in Rama Bai (supra), does not relate to the questions at hand as regards completion of transfer so as to result in capital gains. In fact, the principles aforesaid are relevant only to the second part of the re-assessment order dated 25.01.1988, whereby, as regards interest income, the AO carried out protective assessment on accrual basis at the rate of 12% per annum for the previous year relevant to the assessment year in question i.e., for the period 01.04.1970 to 31.03.1971.34.3. Again, the decision of this Court cited by learned counsel for the revenue in the case of Joginder Singh (supra), which was followed by the Kerala High Court in Peter John (supra), relates to the right to receive compensation and the right to receive interest. In that case, the question was about the date from which interest had to be granted and arose in the circumstances that though the High Court enhanced the amount of compensation for acquisition and awarded 6% per annum as the rate of interest on the amount of compensation determined by the Land Acquisition Officer and the District Judge but, restricted such rate of interest on the amount of compensation enhanced by it at 4% per annum from the date of possession and 6% per annum from the date of its judgement. In that context, this Court held that the High Court erred in restricting the rate of interest on the enhanced amount of compensation because owner of the land was entitled to be paid the true value of land on the date of taking over of possession; and merely because the amount was determined later did not mean that the right to amount came into existence at a later date. This Court also observed that when the High Court held that the rate of interest at 6% per annum was applicable from the date of possession in relation to the component of compensation determined by the District Judge, there was no reason why the same rate should not be applied from the date of taking over possession in relation to the component of enhancement effected by the High Court. For the reasons already discussed, this judgement also does not directly relate with the question of completion of transfer for accrual of capital gain.34.4. The case of Bombay Burmah Trading Corpn. Ltd. (supra), is also inapplicable to the present case because therein, the questions basically related to the amount of damages received by the assessee due to the loss suffered during World War II. The observations therein, again, do not have bearing on the question as to when the transfer of land, in the matter of compulsory acquisition, be treated as complete so as to result in capital gains.35. Therefore, the aforesaid decisions cited by the learned counsel for parties, even if of guidance on the question relating to the right to receive compensation, do not directly assist us in determination of the core question involved in this matter because, income-tax on capital gains is not levied on the mere right to receive compensation. For chargeability of income-tax, the income ought to have either arrived or accrued. In the matter of acquisition of land under the Act of 1894, taking over of possession before arrival of relevant stage for such taking over may give rise to a potential right in the owner of the property to make a claim for compensation but, looking to the scheme of enactment, it cannot be said that transfer resulting in capital gains is complete with taking over of possession, even if such taking over had happened earlier than the point of time of vesting contemplated in the relevant provisions.35.1. The decision of this Court in the case of Avinash Sharma (supra), however, supports the view that in the case of urgency acquisition, even if possession of the land under acquisition is taken earlier, it should be related to the process contemplated by Section 17 (1) of the Act of 1894, and deemed to be effective from the date on which the period prescribed by Section 17 (1) would expire that is, fifteen days from the publication of the notice under Section 9(1) of the Act of 1894. In S. Appala Narasamma and Pandari Laxmaiah (supra), the Andhra Pradesh High Court applied these principles to the cases pertaining to ordinary process of acquisition and held that if possession had been taken earlier, it would relate to the award; and the date of award would be the relevant date for vesting of the land in the Government.35.2. In an overall conspectus of the matter, we are clearly of the view that the statements of law in the aforesaid decisions of Andhra Pradesh High Court, based on the enunciations by this Court in the case of Avinash Sharma (supra), are rather unquestionable and need to be given imprimatur for application to the controversy like the present one.36. For what has been discussed hereinabove, in our view, in the matters relating to compulsory acquisition of land under the Act of 1894, completion of transfer with vesting of land in the Government essentially correlates with taking over of possession of the land under acquisition by the Government. However, where possession is taken over before arriving of the relevant stage for such taking over, capital gains shall be deemed to have accrued upon arrival of the relevant stage and not before. To be more specific, in such cases, capital gains shall be deemed to have accrued: (a) upon making of the award, in the case of ordinary acquisition referable to Section 16; and (b) after expiration of fifteen days from the publication of the notice mentioned in Section 9 (1), in the case of urgency acquisition under Section 17.37. As per the facts-sheet noticed hereinbefore, in the present case, the land in question was subjected to acquisition under the Act of 1894 by adopting the ordinary process leading to award under Section 11. Therefore, ordinarily, capital gains would have accrued upon taking over of possession after making of the award. Consequently, capital gains to the assessee-appellant for the acquisition in question could not have accrued before the date of award i.e., 29.09.1970.38. However, on the strength of the submissions that the land in question had already been in possession of the beneficiary of acquisition, it has been suggested on behalf of the assessee-appellant that the land vested in the Government immediately upon issuance of notification under Section 4 of the Act of 1894 i.e., 15.05.1968 and capital gain accrued on that date. This suggestion and the contentions founded thereupon remain totally meritless for a variety of factors as indicated infra.38.1. Even if we keep all other aspects aside and assume that the land in question was, or came, in possession of the Government before passing of the award, the position of law stated in point (a) of paragraph 36 hereinabove would apply; and capital gains shall be deemed to have accrued upon arrival of the relevant stage of taking possession i.e., making of award and hence, capital gains cannot be taken to have accrued before the date of award i.e., 29.09.1970.38.2. In order to wriggle out of the above-mentioned plain operation of law, it has been desperately suggested on behalf of the appellant that it had been a case of urgency acquisition and hence, the process contemplated by Section 17 of the Act of 1894 would apply. This suggestion is also baseless and suffers from several infirmities.38.2.1. In the first place, it is evident on the face of the record that it had not been a matter of urgency acquisition and nowhere it appears that the process contemplated by Section 17 of the Act of 1894 was resorted to. Even the contents of the award dated 29.09.1970 make it clear that the learned Land Acquisition Collector only awarded interest from the date of initial notification for the reason that the land was in possession of the College but, it was nowhere stated that he had received any directions from the Government to take possession of the land before making of the award while acting under Section 17.38.2.2. Secondly, if at all the proceedings were taken under Section 17 of the Act of 1894, the land could have vested in the Government only after expiration of fifteen days from the date of publication of notice under Section 9(1); and, in any case, could not have vested in the Government on the date of publication of initial notification under Section 4 of the Act of 1894. Significantly, the assessee-appellant did not divulge the date of publication of notice under Section 9(1) of the Act of 1894 despite the queries of the Assessing Officer. The suggestion about application of the process contemplated by Section 17 of the Act of 1894 remains totally unfounded.39.1. Going back to the facts-sheet, it is not in dispute that a large part of the subject land was given on lease to the College and the said lease expired on 31.08.1967 but, the land continued in possession of the College.39.2. As noticed, where the time period of any lease of immovable property is limited, it determines by efflux of such time, as per Section 111(a) of the Act of 1882. Further, in terms of Section 108(q) of the Act of 1882, on determination of lease, the lessee is bound to put the lessor into possession of the leased property. In case where lessee does not deliver possession to the lessor after determination of the lease but the lessor accepts rent or otherwise assents to his continuing in possession, in the absence of an agreement to the contrary, the status of such lessee is that of tenant holding over, in terms of Section 116 of the Act of 1882. But, in the absence of acceptance of rent or otherwise assent by the lessor, the status of lessee is that of tenant at sufferance.39.3. The aforesaid aspects relating to the status of parties after expiry of the period of lease remain well settled and do not require much elaboration. However, for ready reference, we may point out that in the case of Nand Ram (D) through LRs. and Ors. v. Jagdish Prasad (D) through LRs.: 2020 (5) SCALE 723 , this Court has re-expounded the relevant principles in sufficient details, albeit in a different context. The relevant background of the said case had been that the land of plaintiff was taken on lease by the defendant where it was agreed that the plaintiff-lessor will not seek ejectment of defendant-lessee except in the case where the rent for one year remained in arrears. The entire leased land was acquired under the Act of 1894. The Land Acquisition Collector determined the amount of compensation but then, dispute arose with regard to apportionment between the plaintiff and the defendant for which, the matter went in reference. The Reference Court held that lessee having not paid rent for more than twelve months, the lease had come to end and, therefore, he had no right to claim any share in the compensation. Later on, a part of the land was de-notified from acquisition and that part remained in possession of the defendant-lessee. Thereafter, the plaintiff-lessor took up action claiming possession of the land by filing a suit against the defendant- lessee. The suit was decreed by the Trial Court and the decree was affirmed by the First Appellate Court. However, the High Court allowed the second appeal holding that the finding recorded in the award about the lease coming to an end operated as res judicata and the suit was filed beyond the period of limitation. In further appeal, this Court did not approve the decision of High Court and, in the course of allowing the appeal, exposited on the principles relating to the status of parties after expiry of the lease but retention of possession by the lessee, inter alia, in the following passage:-29. The Defendant was inducted as a lessee for a period of 20 years. The lease period expired on 23rd September, 1974. Even if the lessee had not paid rent, the status of the lessee would not change during the continuation of the period of lease. The lessor had a right to seek possession in terms of Clause 9 of the lease deed. The mere fact that the lessor had not chosen to exercise that right will not foreclose the rights of the lessor as owner of the property leased. After the expiry of lease period, and in the absence of payment of rent by the lessee, the status of the lessee will be that of tenant at sufferance and not a tenant holding over. Section 116 of the TP Act confers the status of a tenant holding over on a yearly or monthly basis keeping in view the purpose of the lease, only if the lessor accepts the payment of lease money. If the lessor does not accept the lease money, the status of the lessee would be that of tenant at sufferance. This Court in the judgments reported as Bhawanji Lakhamshi and Ors. v. Himatlal Jamnadas Dani and Ors. (1972) 1 SCC 388 , Badrilal v. Municipal Corp. of Indore : (1973) 2 SCC 388 and R.V. Bhupal Prasad v. State of A.P. and Ors.: (1995) 5 SCC 698 and also a judgment in Sevoke Properties Ltd. v. West Bengal State Electricity Distribution Co. Ltd. examined the scope of Section 116 of the TP Act and held that the lease would be renewed as a tenant holding over only if the lessor accepts the pay-ment of rent after the expiry of lease period. This Court in Bhawanji Lakhamshi held as under:9. The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English Law and the latter a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. ……(emphasis in bold supplied)39.3.1. Further, in Nand Ram (supra), this Court also quoted with approval the principles stated by Delhi High Court in the case of MEC India Pvt. Ltd. v. Lt. Col. Inder Maira & Ors.: 80 (1999) Delhi Law Times 679 . A relevant part of such quotation from the decision of Delhi High Court may also be usefully noticed for the present purpose as under:-. The said principles, when applied to the present case, leave nothing to doubt that in relation to that part of the land in question which was given on lease, possession of the College, after determination of the lease on 31.08.1967, was only that of a tenant at sufferance because it has not been shown if the lessor i.e., the appellant accepted rent or otherwise assented to the continuation of lease. The possession of College over the part of land in question being only that of tenant at sufferance, had the corresponding acknowledgment of the title of the appellant and of the liability of the College to pay mesne profits for use and occupation. The same status of the parties qua the land under lease existed on the date of notification for acquisition i.e., 15.05.1968 and continued even until the date of award i.e., 29.09.1970. In other words, even until the date of award, the appellant-assessee continued to carry its status as owner of the land in question and that status was not lost only because a part of the land remained in possession of the College. In this view of the matter, the suggestion that the land vested in the Government on the date of initial notification remains totally baseless and could only be rejected.39.5. Apart from the above, the significant factor for which the entire case of the assessee-appellant is knocked to the ground is that neither on the date of notification i.e., 15.05.1968 nor until the date of award, the Government took over possession of the land in question. As noticed, the possession had been of the erstwhile lessee, the College. Even if the said College was going to be the ultimate beneficiary of the acquisition, it cannot be said that immediately upon issuance of notification under Section 4 of the Act of 1894, its possession became the possession of the Government. Its possession, as noticed, remained that of tenant at sufferance and not beyond.39.6. Viewed from any angle, it is clear that accrual of capital gains in the present case had not taken place on 15.05.1968. If at all possession of the College was to result in vesting of the land in the Government, such vesting happened only on the date of award i.e., 29.09.1970 and not before. In other words, the transfer of land from the assessee-appellant to the Government reached its completion not before 29.09.1970 and hence, the earliest date for accrual of capital gains because of this acquisition was the date of award i.e., 29.09.1970. Therefore, the assessment of capital gains as income of the appellant for the previous year relevant to the assessment year 1971-1972 does not suffer from any infirmity or error.40. An incidental aspect of the submissions on behalf of the appellant that interest and solatium accrued on 15.05.1968 as per the award and that being the income pertaining to the financial year 1968-1969 could not have been taxed in the assessment year 1971-1972, also deserves to be rejected for the reasons foregoing and for additionally the reason that in his order dated 25.01.1988, the AO has consciously made protective assessment on accrual basis on the interest component referable to the previous year 1970-1971, relevant for the assessment year 1971-72.40.1. We may also usefully observe that awarding of interest from 15.05.1968 in the award had only been just and equitable application of the provisions of law, including Section 28 of the Act of 1894 but that did not result in vesting of the land in Government on that date of notification.41. For what has been discussed hereinabove, the answer to Point No. 1 is clearly in the negative i.e., against the assessee-appellant and in favour of the revenue that on the facts and in the circumstances of the present case, transfer of the capital asset (land in question), for the purposes of Section 45 of the Act of 1961, was complete only on 29.09.1970, the date of award and not on 15.05.1968, the date of notification for acquisition under Section 4 of the Act of 1894; and hence, capital gains arising out of such acquisition have rightly been charged to tax with reference to the date of award i.e., 29.09.1970.42. Though we have found that vesting of land in question for the purpose of accrual of capital gains in this case was complete only on the date of award that falls within the previous year relevant for the assessment year 1971-72Admittedly, the said decision for the assessment year 1975- 1976 was not appealed against and had attained finality.43. We may gainfully recapitulate that in the case pertaining to the assessment year 1975-1976, the question of capital gains arose in the backdrop of the facts that another parcel of land of the appellant was acquired for the purpose of construction of warehouse of Ambala City. The notification under Section 4 of the Act of 1894 was issued on 26.06.1971 and the award of compensation was made on 27.06.1974 but, possession of the said land was taken by the Government on 04.09.1972 i.e., before making of the award. In the given set of facts and circumstances, in ITA No.635/Chandi/84, the ITAT accepted the contention that the case fell under the urgency provision contained in Section 17 of the Act of 1894 where the assessee was divested of the title to the property, that vested in the Government with effect from 04.09.1972, the date of taking over possession. Hence, the ITAT held that the capital gains arising from the said acquisition were not assessable for the accounting period relevant for the assessment year 1975-1976.The learned counsel has relied upon the following observations in Berger Paints India Ltd. (supra):-In view of the judgments of this court in Union of India v. Kaumudini Narayan Dalal [2001] 249 ITR 219 ; CIT v. Narendra Doshi [2002] 254 ITR 606 and CIT v. Shivsagar Estate [2002] 257 ITR 59 , the principle established is that if the Revenue has not challenged the correctness of the law laid down by the High Court and has accepted it in the case of one assessee, then it is not open to the Revenue to challenge its correctness in the case of other assessees, without just cause.. The question is whether the above-noted observations apply to the present case? In our view, the answer to this question is clearly in the negative for more than one reason.44.1. In the first place, it is ex facie evident that the matter involved in the said case pertaining to the assessment year 1975-1976 was taken to be an acquisition under the urgency provision contained in Section 17 of the Act of 1894 whereas, the acquisition proceedings in the present case had not been of urgency acquisition but had been of ordinary process where possession could have been taken only under Section 16 after making of the award. As noticed, the very structure of the ordinary process leading to possession under Section 16 of the Act of 1894 has been different than that of the urgency process under Section 17; and the said decision pertaining to the proceedings under Section 17 of the Act of 1894 cannot be directly applied to the present case.44.2. Secondly, the fact that the said case relating to the assessment year 1975-1976 was not akin to the present case was indicated by the ITAT itself. As noticed, both the cases, i.e., the present one relating to the assessment year 1971-1972 (in ITA No. 634/Chandi/84) and that relating to the assessment year 1975-1976 (in ITA No. 635/Chandi/84) were decided by ITAT on the same date i.e., 19.12.1985. While the answer in relation to the assessment year 1975-1976 was given by the ITAT in favour of assessee-appellant to the effect that possession having been taken on the specified date i.e., 04.09.1972, capital gains were not assessable for the assessment year 1975-1976 but, while deciding the appeal relating to the present case for the assessment year 1971-1972, the ITAT found that the date of taking over possession was not available and hence, the matter was restored to the file of the ITO to find out the actual date of possession.44.3. Thirdly, even if we assume that the stand of revenue in the present case is not in conformity with the decision of ITAT in relation to the assessment year 1975-1976, it cannot be said that revenue has no just cause to take such a stand. As noticed, while rendering the decision in relation to the assessment year 1975-1976, the ITAT did not notice the principles available in various decisions including that of this Court in Avinash Sharma (supra) that even in the case of urgency acquisition under Section 17 of the Act of 1894, land was to vest in Government not on the date of taking over possession but, only on the expiration of fifteen days from the publication of the notice mentioned in Section 9(1). Looking to the facts of the present case and the law applicable, in our view, the revenue had every reason to question the correctness of the later decision of ITAT dated 29.06.1990 in the second round of proceedings pertaining to the assessment year 1971-1972.44.4. Fourthly, the ITAT itself on being satisfied about the question of law involved in this case, made a reference by its order dated 15.07.1991 to the High Court. The High Court having dealt with the matter in the reference proceedings and having answered the reference in conformity with the applicable principles, the assessee cannot be heard to question the stand of the revenue with reference to the other order for the assessment year 1975-1976. In any case, it cannot be said that the decision in relation to the assessment year 1975-1976 had been of any such nature which would preclude the revenue from raising the issues which are germane to the present case.45. Hence, the answer to Point No. 2 is also clearly in the negative i.e., against the assessee-appellant and in favour of the revenue that the fact situation of the present case relating to the assessment year 1971-1972 is not similar to that of the other case of the appellant relating to the assessment year 1975-1976 and the revenue is not precluded from taking the stand that the transfer of capital asset in the present case was complete only on the date of award i.e., on 29.09.1970.46. For what has been discussed hereinabove, we have not an iota of doubt that in the second round of proceeding, the AO had rightly assessed the tax liability of the appellant, on long-term capital gains arising on account of acquisition, on the basis of the amount of compensation allowed in the award dated 29.09.1970 as also the enhanced amount of compensation accrued finally to the appellant; and as regards interest income, had rightly made protective assessment on accrual basis.27. Having regard to the relevant provisions of the Act of 1961 whereby and whereunder, capital gains essentially relate to the transfer of capital asset by the assessee; and the background aspects of the present case, where the capital asset of the assessee-appellant (land in question) was in possession of the beneficiary College even after expiry of the lease on 31.08.1967, it shall also be apposite to take note of a few provisions of the Transfer of Property Act, 1882 concerning the general connotation of transfer of property as also those relating to the transaction of lease of immovable property. | 0 | 22,728 | 7,509 | ### Instruction:
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the assessee was divested of the title to the property, that vested in the Government with effect from 04.09.1972, the date of taking over possession. Hence, the ITAT held that the capital gains arising from the said acquisition were not assessable for the accounting period relevant for the assessment year 1975-1976. 43.1. Learned counsel for the appellant has strenuously argued that the revenue is not entitled to take a different stand in the present case pertaining to the assessment year 1971–1972, after having accepted the said decision pertaining to the assessment year 1975–1976 where it was held that capital gains accrued on the date of taking over possession of the land under acquisition by the Government. The learned counsel has relied upon the following observations in Berger Paints India Ltd. (supra):- In view of the judgments of this court in Union of India v. Kaumudini Narayan Dalal [2001] 249 ITR 219 ; CIT v. Narendra Doshi [2002] 254 ITR 606 and CIT v. Shivsagar Estate [2002] 257 ITR 59 , the principle established is that if the Revenue has not challenged the correctness of the law laid down by the High Court and has accepted it in the case of one assessee, then it is not open to the Revenue to challenge its correctness in the case of other assessees, without just cause. 44. The question is whether the above-noted observations apply to the present case? In our view, the answer to this question is clearly in the negative for more than one reason. 44.1. In the first place, it is ex facie evident that the matter involved in the said case pertaining to the assessment year 1975-1976 was taken to be an acquisition under the urgency provision contained in Section 17 of the Act of 1894 whereas, the acquisition proceedings in the present case had not been of urgency acquisition but had been of ordinary process where possession could have been taken only under Section 16 after making of the award. As noticed, the very structure of the ordinary process leading to possession under Section 16 of the Act of 1894 has been different than that of the urgency process under Section 17; and the said decision pertaining to the proceedings under Section 17 of the Act of 1894 cannot be directly applied to the present case. 44.2. Secondly, the fact that the said case relating to the assessment year 1975-1976 was not akin to the present case was indicated by the ITAT itself. As noticed, both the cases, i.e., the present one relating to the assessment year 1971-1972 (in ITA No. 634/Chandi/84) and that relating to the assessment year 1975-1976 (in ITA No. 635/Chandi/84) were decided by ITAT on the same date i.e., 19.12.1985. While the answer in relation to the assessment year 1975-1976 was given by the ITAT in favour of assessee-appellant to the effect that possession having been taken on the specified date i.e., 04.09.1972, capital gains were not assessable for the assessment year 1975-1976 but, while deciding the appeal relating to the present case for the assessment year 1971-1972, the ITAT found that the date of taking over possession was not available and hence, the matter was restored to the file of the ITO to find out the actual date of possession. 44.3. Thirdly, even if we assume that the stand of revenue in the present case is not in conformity with the decision of ITAT in relation to the assessment year 1975-1976, it cannot be said that revenue has no just cause to take such a stand. As noticed, while rendering the decision in relation to the assessment year 1975-1976, the ITAT did not notice the principles available in various decisions including that of this Court in Avinash Sharma (supra) that even in the case of urgency acquisition under Section 17 of the Act of 1894, land was to vest in Government not on the date of taking over possession but, only on the expiration of fifteen days from the publication of the notice mentioned in Section 9(1). Looking to the facts of the present case and the law applicable, in our view, the revenue had every reason to question the correctness of the later decision of ITAT dated 29.06.1990 in the second round of proceedings pertaining to the assessment year 1971-1972. 44.4. Fourthly, the ITAT itself on being satisfied about the question of law involved in this case, made a reference by its order dated 15.07.1991 to the High Court. The High Court having dealt with the matter in the reference proceedings and having answered the reference in conformity with the applicable principles, the assessee cannot be heard to question the stand of the revenue with reference to the other order for the assessment year 1975-1976. In any case, it cannot be said that the decision in relation to the assessment year 1975-1976 had been of any such nature which would preclude the revenue from raising the issues which are germane to the present case. 45. Hence, the answer to Point No. 2 is also clearly in the negative i.e., against the assessee-appellant and in favour of the revenue that the fact situation of the present case relating to the assessment year 1971-1972 is not similar to that of the other case of the appellant relating to the assessment year 1975-1976 and the revenue is not precluded from taking the stand that the transfer of capital asset in the present case was complete only on the date of award i.e., on 29.09.1970. Conclusion 46. For what has been discussed hereinabove, we have not an iota of doubt that in the second round of proceeding, the AO had rightly assessed the tax liability of the appellant, on long-term capital gains arising on account of acquisition, on the basis of the amount of compensation allowed in the award dated 29.09.1970 as also the enhanced amount of compensation accrued finally to the appellant; and as regards interest income, had rightly made protective assessment on accrual basis.
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the capital gains arising from the said acquisition were not assessable for the accounting period relevant for the assessment year 1975-1976.The learned counsel has relied upon the following observations in Berger Paints India Ltd. (supra):-In view of the judgments of this court in Union of India v. Kaumudini Narayan Dalal [2001] 249 ITR 219 ; CIT v. Narendra Doshi [2002] 254 ITR 606 and CIT v. Shivsagar Estate [2002] 257 ITR 59 , the principle established is that if the Revenue has not challenged the correctness of the law laid down by the High Court and has accepted it in the case of one assessee, then it is not open to the Revenue to challenge its correctness in the case of other assessees, without just cause.. The question is whether the above-noted observations apply to the present case? In our view, the answer to this question is clearly in the negative for more than one reason.44.1. In the first place, it is ex facie evident that the matter involved in the said case pertaining to the assessment year 1975-1976 was taken to be an acquisition under the urgency provision contained in Section 17 of the Act of 1894 whereas, the acquisition proceedings in the present case had not been of urgency acquisition but had been of ordinary process where possession could have been taken only under Section 16 after making of the award. As noticed, the very structure of the ordinary process leading to possession under Section 16 of the Act of 1894 has been different than that of the urgency process under Section 17; and the said decision pertaining to the proceedings under Section 17 of the Act of 1894 cannot be directly applied to the present case.44.2. Secondly, the fact that the said case relating to the assessment year 1975-1976 was not akin to the present case was indicated by the ITAT itself. As noticed, both the cases, i.e., the present one relating to the assessment year 1971-1972 (in ITA No. 634/Chandi/84) and that relating to the assessment year 1975-1976 (in ITA No. 635/Chandi/84) were decided by ITAT on the same date i.e., 19.12.1985. While the answer in relation to the assessment year 1975-1976 was given by the ITAT in favour of assessee-appellant to the effect that possession having been taken on the specified date i.e., 04.09.1972, capital gains were not assessable for the assessment year 1975-1976 but, while deciding the appeal relating to the present case for the assessment year 1971-1972, the ITAT found that the date of taking over possession was not available and hence, the matter was restored to the file of the ITO to find out the actual date of possession.44.3. Thirdly, even if we assume that the stand of revenue in the present case is not in conformity with the decision of ITAT in relation to the assessment year 1975-1976, it cannot be said that revenue has no just cause to take such a stand. As noticed, while rendering the decision in relation to the assessment year 1975-1976, the ITAT did not notice the principles available in various decisions including that of this Court in Avinash Sharma (supra) that even in the case of urgency acquisition under Section 17 of the Act of 1894, land was to vest in Government not on the date of taking over possession but, only on the expiration of fifteen days from the publication of the notice mentioned in Section 9(1). Looking to the facts of the present case and the law applicable, in our view, the revenue had every reason to question the correctness of the later decision of ITAT dated 29.06.1990 in the second round of proceedings pertaining to the assessment year 1971-1972.44.4. Fourthly, the ITAT itself on being satisfied about the question of law involved in this case, made a reference by its order dated 15.07.1991 to the High Court. The High Court having dealt with the matter in the reference proceedings and having answered the reference in conformity with the applicable principles, the assessee cannot be heard to question the stand of the revenue with reference to the other order for the assessment year 1975-1976. In any case, it cannot be said that the decision in relation to the assessment year 1975-1976 had been of any such nature which would preclude the revenue from raising the issues which are germane to the present case.45. Hence, the answer to Point No. 2 is also clearly in the negative i.e., against the assessee-appellant and in favour of the revenue that the fact situation of the present case relating to the assessment year 1971-1972 is not similar to that of the other case of the appellant relating to the assessment year 1975-1976 and the revenue is not precluded from taking the stand that the transfer of capital asset in the present case was complete only on the date of award i.e., on 29.09.1970.46. For what has been discussed hereinabove, we have not an iota of doubt that in the second round of proceeding, the AO had rightly assessed the tax liability of the appellant, on long-term capital gains arising on account of acquisition, on the basis of the amount of compensation allowed in the award dated 29.09.1970 as also the enhanced amount of compensation accrued finally to the appellant; and as regards interest income, had rightly made protective assessment on accrual basis.27. Having regard to the relevant provisions of the Act of 1961 whereby and whereunder, capital gains essentially relate to the transfer of capital asset by the assessee; and the background aspects of the present case, where the capital asset of the assessee-appellant (land in question) was in possession of the beneficiary College even after expiry of the lease on 31.08.1967, it shall also be apposite to take note of a few provisions of the Transfer of Property Act, 1882 concerning the general connotation of transfer of property as also those relating to the transaction of lease of immovable property.
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Commissioner of Commercial Taxes Vs. Desai Beedi Company | this Court in the case of Hyderabad Engg. Industries v. State of A.P. (2011) 4 SCC 705 bears significance in understanding the proposition at hand. The issue that arose for the consideration of this Court was whether the sale or purchase of goods therein could be said to have taken place in the course of inter-State trade or commerce and therefore whether the said transaction was exigible to tax under the CST Act. The said case pertained to a Company which had its registered office in New Delhi and further was incorporated in the State of Andhra Pradesh as well. It would be pertinent to note that the Company therein was registered as a dealer under the Act as well as the CST Act. In determining the question whether the transaction therein was an inter-state sale or a branch-transfer, this Court referred to Sections 3(a) and 6-A of the CST Act and held as under: 23. It is an accepted position in law that a mere transfer of goods from a head office to a branch office or an inter-branch transfer of goods, which are broadly brought under the phrase branch transfers cannot be regarded as sales in the course of inter-State trade, for the simple reason that a head office or branch cannot be treated as having traded with itself or sold articles to itself by means of these stock transfers. 27. In view of the aforesaid settled principles of law, inter-branch transfers or transfers between the head office and a branch office cannot be considered as inter-State sale as contemplated under the CST Act. 28. Having noticed the aforesaid, we now turn to the facts of the present case to determine whether the transaction in question is an inter-State sale liable to tax under the CST Act or a sale transaction exigible under the provisions of the Act. 29. In the instant case, the Assessee-herein is a branch office which procures Beedi leaves from the seller. The seller had issued a notice inviting for the tenders and the tender quotes stating the rate per kg at which the prospective purchasers desire to purchase the Beedi leaf to be collected, cured, bagged in trade bags and delivered at the godown of a unit. The Assessee had participated in the auction pursuant to the aforesaid invitation and succeeded in its offer. With regard to the conditions of completion of the sale transaction, it is relevant to notice Rule 3(13) of Andhra Pradesh Minor Forest Produce (Regulation of Trade in Abnus Leaves) Rules, 1970 which are applicable to the tender issued by the seller. The said Rule reads as follows: Subject to any orders of the Divisional Forest Officer in writing directing the agent to withhold the delivery to the purchaser or to deliver to any person, any specified quantity of abnus leaves from specified depots, the agent shall deliver immediately and in the manner directed by the Divisional Forest Officer abnus leaves purchased or collected by him to the purchaser; Provided that no such delivery shall be made unless the agent has ensured that necessary payment had been made for the Abnus leaves to be delivered. The said Rule stipulates that the delivery of goods takes place immediately subsequent to the consideration amount being paid by the purchaser. 30. The tender schedule, as issued by the seller, also stipulates that the purchaser should remove the stocks from the godowns within 30 days of issue of delivery orders failing which the purchaser will have to pay the godown rent and other expenses on watch and ward, insurance etc. Further, the period for which the stocks remain in the godown, the seller shall not be responsible for any deterioration in the quality of Beedi leaves during the storage in godown. Based on the aforementioned stipulations, it is clear that the delivery of the goods is complete at the godown of the seller on payment of the amount of the agreed consideration. 31. In the instant case, the sale of the goods is between the seller and the purchaser, that is between the State Department and the Assessee-branch office in the State of Andhra Pradesh. 32. Taking into consideration the abovementioned factors it becomes clear that the delivery of the goods takes place at the godown of the seller in the State of Andhra Pradesh. The movement of goods from the godown takes place at the instance of the purchaser. The final destination of the consignment and the route or destination of the goods by the seller is inconsequential to the sale transaction. 33. In view of the above discussion, it can be inferred that the events of sale of goods by the seller and the movement of goods from the State of Andhra Pradesh to another State are not inextricably connected and independent of each other. There is no incident of direct sale between the seller and the head office of the Respondent-Company in the State of Maharashtra. It is the branch office that purchases the goods and receives them subsequent to payment made by it to the seller and thereafter, transfers it to the head office of the Respondent-Company in the State of Maharashtra. The incidence of sale is complete once the purchaser, that is, the branch office renders the payment for the goods. Once the sale transaction concludes in the State of Andhra Pradesh only, the mere transport of goods from branch office in Andhra Pradesh to the head office in Maharashtra would not result in an inter-State sale. Therefore, the sale or purchase of the Beedi leaves in the present case do not occasion the movement of the goods outside the State in order to qualify as an inter-State sale Under Section 3(a) of the CST ACT and therefore, is exigible to tax under the Act. 34. In view of the foregoing discussion, we are of the considered opinion that the impugned judgment and order passed by the High Court cannot be sustained and requires to be set aside. | 1[ds]15. At the outset, we would discuss the decision of this Court in K.B. Sahas case relied upon by learned Counsel for the Respondent-Assessee to fortify his stand. In our view, this decision does not apply to the facts and circumstances of the present case. The facts in the instant case are materially distinguishable from the facts in the aforesaid case. Therein, the Assessee carried on business in tobacco and Kendu leaves and had its registered office in the State of West Bengal, that is, outside the State of Orissa where the buyer is situated and the auction was conducted. The purchaser was neither situated in the State of Orissa nor registered as a dealer under the West Bengal Sales Tax, 1994. Since the place of business of all entities of the Assessee were located outside the State of Orissa, the Court considering the same held that the sale was inextricably connected to the transportation of the goods outside the borders of the State of Orissa so as to render the sale transaction complete and therefore, was an inter-State sale. In the instant case, the Assessee-branch office situated in the State of Andhra Pradesh is a registered dealer under the Act and has participated in the sale transaction as the purchaser of goods from the seller. It is only subsequent to the payment and delivery of goods, the Assessee transports them to the head office of the Respondent-Company in the State of Maharashtra. The sale transaction concludes between the State Department and the auction purchaser as and when the payment is made by the latter and the incidence of transport has no link to the already concluded sale transaction.Section 3 enunciates the principle that when a Sale or purchase of goods can be said to have taken place in the course of inter-state trade or commerce19. On consideration of the principles enunciated in the aforesaid decisions of this Court, it becomes abundantly clear that in order to constitute an inter-State sale, the movement of goods should be occasioned by the sale and the movement of goods and the sale must be inextricably connected.20. In view of the above, it would be beneficial for us to notice the decisions wherein this Court has laid down the principles pertaining to inter-State sale. The Constitution Bench of this Court in Cement Marketing Co. of India (P) Ltd. v. State of Mysore (1963) 3 SCR 777 , inter alia, noticed the that in order for a sale or purchase to be considered as Inter-State it would be essential that there must be transport of goods from one State to another under the said contract of sale or purchase. The Constitution Bench, vide a detailed judgment, in support of the aforesaid principle of law, observed as follows:11. In Endupuri Narasimbam v. State of Orissa, it was held in the case of sales covered by Article 286(1)(b) that only sale or purchase of goods which occasions the export or import of the goods out of or into the territory of India were exempt from the imposition of tax on the sale or purchase of goods and in regard to prohibition against imposition of tax on inter-State sales the test, it was said, was that in order that a sale or purchase might be inter-State it is essential that there must be transport of goods from one State to another under the contract of sale or purchase. The following observations from the Bengal Immunity Co. Ltd. v. State of Bihar were quoted with approval in support of the proposition:A sale could be said to be in the course of inter-State trade only if two conditions concur:(1) A sale of goods, and (2) a transport of those goods from one State to another under the contract of sale. Unless both these conditions are satisfied, there can be no sale in the course of inter-State trade.Thus the tests which have been laid down to bring a sale within inter-State sales are that the transaction must involve movement of goods across the border (Mohanlal Hargovind case transactions are inter-State in which as a direct result of such sales the goods are actually delivered for consumption in another State; Ram Narain and Sons v. Assistant Commissioner of Sales Tax a contract of sale must involve transport of goods from one State to another under the contract of sale; Bengal Immunity Company case. In the case of sales in the course of export or import the test laid down was a series of integrated activities commencing from an agreement of sale and ending with the delivery of goods to a common carrier for export by land or by sea; Bombay Company Ltd. case....21. The principle that a sale would be an inter-State sale only if the movement of the goods was the result of a covenant in the contract of sale or an incident of that contract has also been noticed in Union of India v. K.G. Khosla and Co. Ltd. (1979) 2 SCC 242. 22. Further, in the case of Sahney Steel and Press Works Ltd. v. CTO (1985) 4 SCC 173 , this Court was required to consider whether the transaction therein constituted an inter-State sale. It was a case wherein the buyer placed an order with the branch office of the Assessee therein, situate at Bombay, Calcutta and Coimbatore. The given branch office then communicated the terms and specifications of the orders to the registered office of the Assessee, situate at Hyderabad, and for the purpose of fulfilling that order the manufactured goods commenced their journey from the registered office within the State of Andhra Pradesh to the branch office outside the State for delivery of the goods to the buyer. The Assessee therein contended that when the registered office has dispatched the manufactured goods to its branch office, it ought to be considered merely as a transfer of stock from the registered office to the branch office. This Court relied upon its earlier decision in the case of English Electric Co. of India Ltd. v. Deputy Commercial Tax Officer (1976) 4 SCC 460 , to observe that when the movement of the goods from one State to another is an incident of a given contract it is an inter-State sale, and what would be decisive is whether the given contract of sale is one which occasions the movement of goods from one State to another.23. This Court, in Sahney Steel and Press Works Ltd. case (supra), held as follows:8....The manufacture of the goods at the Hyderabad factory and their movement thereafter from Hyderabad to the branch office outside the State was an incident of the contract entered into with the buyer, for it was intended that the same goods should be delivered by the branch office to the buyer. There was no break in the movement of the goods. The branch office merely acted as a conduit through which the goods passed on their way to the buyer. It would have been a different matter if the particular goods had been despatched by the registered office at Hyderabad to the branch office outside the State for sale in the open market and without reference to any order placed by the buyer. In such a case if the goods are purchased from the branch office, it is not a sale under which the goods commenced their movement from Hyderabad. It is a sale where the goods moved merely from the branch office to the buyer....24. The aforementioned principle laid down in Sahney Steel and Press Works Ltd. case (supra), that there must be a conceivable link between the movement of goods and the given contract of sale for the transaction to constitute an inter-state sale, has further been followed in Ashok Leyland Ltd. v. State of T.N. (2004) 3 SCC 1 and in IDL Chemicals Ltd. v. State of Orissa (2007) 14 SCC 386. 25. It may be pertinent to note that the factual scenario in the aforementioned cases, namely Sahney Steel and Press Works Ltd. case (supra), Ashok Leyland Ltd. case (supra) and IDL Chemicals Ltd. case (supra), are different from the instant case, however the principle of law enunciated would remain applicable. The said aforementioned cases deal with the scenario wherein the head or registered office, situated in one State, would forward goods to the branch office, situated in a different State, in pursuance to an order placed by a buyer before the given branch office. The present case, in brief, pertains to the branch office participating in an auction proceeding and thereby procuring certain goods from the State Department. Subsequently, the branch office would transfer the said goods to the head office which was situated in a different State. Therefore, in the present case there is no link between the State Department and the head office of the Respondent-company herein.26. The decision of this Court in the case of Hyderabad Engg. Industries v. State of A.P. (2011) 4 SCC 705 bears significance in understanding the proposition at hand. The issue that arose for the consideration of this Court was whether the sale or purchase of goods therein could be said to have taken place in the course of inter-State trade or commerce and therefore whether the said transaction was exigible to tax under the CST Act. The said case pertained to a Company which had its registered office in New Delhi and further was incorporated in the State of Andhra Pradesh as well. It would be pertinent to note that the Company therein was registered as a dealer under the Act as well as the CST Act. In determining the question whether the transaction therein was an inter-state sale or a branch-transfer, this Court referred to Sections 3(a) and 6-A of the CST Act and held as under:23. It is an accepted position in law that a mere transfer of goods from a head office to a branch office or an inter-branch transfer of goods, which are broadly brought under the phrase branch transfers cannot be regarded as sales in the course of inter-State trade, for the simple reason that a head office or branch cannot be treated as having traded with itself or sold articles to itself by means of these stock transfers.27. In view of the aforesaid settled principles of law, inter-branch transfers or transfers between the head office and a branch office cannot be considered as inter-State sale as contemplated under the CST Act.29. In the instant case, the Assessee-herein is a branch office which procures Beedi leaves from the seller. The seller had issued a notice inviting for the tenders and the tender quotes stating the rate per kg at which the prospective purchasers desire to purchase the Beedi leaf to be collected, cured, bagged in trade bags and delivered at the godown of a unit. The Assessee had participated in the auction pursuant to the aforesaid invitation and succeeded in its offer. With regard to the conditions of completion of the sale transaction, it is relevant to notice Rule 3(13) of Andhra Pradesh Minor Forest Produce (Regulation of Trade in Abnus Leaves) Rules, 1970 which are applicable to the tender issued by the seller.The said Rule stipulates that the delivery of goods takes place immediately subsequent to the consideration amount being paid by the purchaser.30. The tender schedule, as issued by the seller, also stipulates that the purchaser should remove the stocks from the godowns within 30 days of issue of delivery orders failing which the purchaser will have to pay the godown rent and other expenses on watch and ward, insurance etc. Further, the period for which the stocks remain in the godown, the seller shall not be responsible for any deterioration in the quality of Beedi leaves during the storage in godown. Based on the aforementioned stipulations, it is clear that the delivery of the goods is complete at the godown of the seller on payment of the amount of the agreed consideration.31. In the instant case, the sale of the goods is between the seller and the purchaser, that is between the State Department and the Assessee-branch office in the State of Andhra Pradesh.32. Taking into consideration the abovementioned factors it becomes clear that the delivery of the goods takes place at the godown of the seller in the State of Andhra Pradesh. The movement of goods from the godown takes place at the instance of the purchaser. The final destination of the consignment and the route or destination of the goods by the seller is inconsequential to the sale transaction.33. In view of the above discussion, it can be inferred that the events of sale of goods by the seller and the movement of goods from the State of Andhra Pradesh to another State are not inextricably connected and independent of each other. There is no incident of direct sale between the seller and the head office of the Respondent-Company in the State of Maharashtra. It is the branch office that purchases the goods and receives them subsequent to payment made by it to the seller and thereafter, transfers it to the head office of the Respondent-Company in the State of Maharashtra. The incidence of sale is complete once the purchaser, that is, the branch office renders the payment for the goods. Once the sale transaction concludes in the State of Andhra Pradesh only, the mere transport of goods from branch office in Andhra Pradesh to the head office in Maharashtra would not result in an inter-State sale. Therefore, the sale or purchase of the Beedi leaves in the present case do not occasion the movement of the goods outside the State in order to qualify as an inter-State sale Under Section 3(a) of the CST ACT and therefore, is exigible to tax under the Act.34. In view of the foregoing discussion, we are of the considered opinion that the impugned judgment and order passed by the High Court cannot be sustained and requires to be set aside. | 1 | 4,615 | 2,540 | ### 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:
this Court in the case of Hyderabad Engg. Industries v. State of A.P. (2011) 4 SCC 705 bears significance in understanding the proposition at hand. The issue that arose for the consideration of this Court was whether the sale or purchase of goods therein could be said to have taken place in the course of inter-State trade or commerce and therefore whether the said transaction was exigible to tax under the CST Act. The said case pertained to a Company which had its registered office in New Delhi and further was incorporated in the State of Andhra Pradesh as well. It would be pertinent to note that the Company therein was registered as a dealer under the Act as well as the CST Act. In determining the question whether the transaction therein was an inter-state sale or a branch-transfer, this Court referred to Sections 3(a) and 6-A of the CST Act and held as under: 23. It is an accepted position in law that a mere transfer of goods from a head office to a branch office or an inter-branch transfer of goods, which are broadly brought under the phrase branch transfers cannot be regarded as sales in the course of inter-State trade, for the simple reason that a head office or branch cannot be treated as having traded with itself or sold articles to itself by means of these stock transfers. 27. In view of the aforesaid settled principles of law, inter-branch transfers or transfers between the head office and a branch office cannot be considered as inter-State sale as contemplated under the CST Act. 28. Having noticed the aforesaid, we now turn to the facts of the present case to determine whether the transaction in question is an inter-State sale liable to tax under the CST Act or a sale transaction exigible under the provisions of the Act. 29. In the instant case, the Assessee-herein is a branch office which procures Beedi leaves from the seller. The seller had issued a notice inviting for the tenders and the tender quotes stating the rate per kg at which the prospective purchasers desire to purchase the Beedi leaf to be collected, cured, bagged in trade bags and delivered at the godown of a unit. The Assessee had participated in the auction pursuant to the aforesaid invitation and succeeded in its offer. With regard to the conditions of completion of the sale transaction, it is relevant to notice Rule 3(13) of Andhra Pradesh Minor Forest Produce (Regulation of Trade in Abnus Leaves) Rules, 1970 which are applicable to the tender issued by the seller. The said Rule reads as follows: Subject to any orders of the Divisional Forest Officer in writing directing the agent to withhold the delivery to the purchaser or to deliver to any person, any specified quantity of abnus leaves from specified depots, the agent shall deliver immediately and in the manner directed by the Divisional Forest Officer abnus leaves purchased or collected by him to the purchaser; Provided that no such delivery shall be made unless the agent has ensured that necessary payment had been made for the Abnus leaves to be delivered. The said Rule stipulates that the delivery of goods takes place immediately subsequent to the consideration amount being paid by the purchaser. 30. The tender schedule, as issued by the seller, also stipulates that the purchaser should remove the stocks from the godowns within 30 days of issue of delivery orders failing which the purchaser will have to pay the godown rent and other expenses on watch and ward, insurance etc. Further, the period for which the stocks remain in the godown, the seller shall not be responsible for any deterioration in the quality of Beedi leaves during the storage in godown. Based on the aforementioned stipulations, it is clear that the delivery of the goods is complete at the godown of the seller on payment of the amount of the agreed consideration. 31. In the instant case, the sale of the goods is between the seller and the purchaser, that is between the State Department and the Assessee-branch office in the State of Andhra Pradesh. 32. Taking into consideration the abovementioned factors it becomes clear that the delivery of the goods takes place at the godown of the seller in the State of Andhra Pradesh. The movement of goods from the godown takes place at the instance of the purchaser. The final destination of the consignment and the route or destination of the goods by the seller is inconsequential to the sale transaction. 33. In view of the above discussion, it can be inferred that the events of sale of goods by the seller and the movement of goods from the State of Andhra Pradesh to another State are not inextricably connected and independent of each other. There is no incident of direct sale between the seller and the head office of the Respondent-Company in the State of Maharashtra. It is the branch office that purchases the goods and receives them subsequent to payment made by it to the seller and thereafter, transfers it to the head office of the Respondent-Company in the State of Maharashtra. The incidence of sale is complete once the purchaser, that is, the branch office renders the payment for the goods. Once the sale transaction concludes in the State of Andhra Pradesh only, the mere transport of goods from branch office in Andhra Pradesh to the head office in Maharashtra would not result in an inter-State sale. Therefore, the sale or purchase of the Beedi leaves in the present case do not occasion the movement of the goods outside the State in order to qualify as an inter-State sale Under Section 3(a) of the CST ACT and therefore, is exigible to tax under the Act. 34. In view of the foregoing discussion, we are of the considered opinion that the impugned judgment and order passed by the High Court cannot be sustained and requires to be set aside.
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### Explanation:
Sahney Steel and Press Works Ltd. case (supra), Ashok Leyland Ltd. case (supra) and IDL Chemicals Ltd. case (supra), are different from the instant case, however the principle of law enunciated would remain applicable. The said aforementioned cases deal with the scenario wherein the head or registered office, situated in one State, would forward goods to the branch office, situated in a different State, in pursuance to an order placed by a buyer before the given branch office. The present case, in brief, pertains to the branch office participating in an auction proceeding and thereby procuring certain goods from the State Department. Subsequently, the branch office would transfer the said goods to the head office which was situated in a different State. Therefore, in the present case there is no link between the State Department and the head office of the Respondent-company herein.26. The decision of this Court in the case of Hyderabad Engg. Industries v. State of A.P. (2011) 4 SCC 705 bears significance in understanding the proposition at hand. The issue that arose for the consideration of this Court was whether the sale or purchase of goods therein could be said to have taken place in the course of inter-State trade or commerce and therefore whether the said transaction was exigible to tax under the CST Act. The said case pertained to a Company which had its registered office in New Delhi and further was incorporated in the State of Andhra Pradesh as well. It would be pertinent to note that the Company therein was registered as a dealer under the Act as well as the CST Act. In determining the question whether the transaction therein was an inter-state sale or a branch-transfer, this Court referred to Sections 3(a) and 6-A of the CST Act and held as under:23. It is an accepted position in law that a mere transfer of goods from a head office to a branch office or an inter-branch transfer of goods, which are broadly brought under the phrase branch transfers cannot be regarded as sales in the course of inter-State trade, for the simple reason that a head office or branch cannot be treated as having traded with itself or sold articles to itself by means of these stock transfers.27. In view of the aforesaid settled principles of law, inter-branch transfers or transfers between the head office and a branch office cannot be considered as inter-State sale as contemplated under the CST Act.29. In the instant case, the Assessee-herein is a branch office which procures Beedi leaves from the seller. The seller had issued a notice inviting for the tenders and the tender quotes stating the rate per kg at which the prospective purchasers desire to purchase the Beedi leaf to be collected, cured, bagged in trade bags and delivered at the godown of a unit. The Assessee had participated in the auction pursuant to the aforesaid invitation and succeeded in its offer. With regard to the conditions of completion of the sale transaction, it is relevant to notice Rule 3(13) of Andhra Pradesh Minor Forest Produce (Regulation of Trade in Abnus Leaves) Rules, 1970 which are applicable to the tender issued by the seller.The said Rule stipulates that the delivery of goods takes place immediately subsequent to the consideration amount being paid by the purchaser.30. The tender schedule, as issued by the seller, also stipulates that the purchaser should remove the stocks from the godowns within 30 days of issue of delivery orders failing which the purchaser will have to pay the godown rent and other expenses on watch and ward, insurance etc. Further, the period for which the stocks remain in the godown, the seller shall not be responsible for any deterioration in the quality of Beedi leaves during the storage in godown. Based on the aforementioned stipulations, it is clear that the delivery of the goods is complete at the godown of the seller on payment of the amount of the agreed consideration.31. In the instant case, the sale of the goods is between the seller and the purchaser, that is between the State Department and the Assessee-branch office in the State of Andhra Pradesh.32. Taking into consideration the abovementioned factors it becomes clear that the delivery of the goods takes place at the godown of the seller in the State of Andhra Pradesh. The movement of goods from the godown takes place at the instance of the purchaser. The final destination of the consignment and the route or destination of the goods by the seller is inconsequential to the sale transaction.33. In view of the above discussion, it can be inferred that the events of sale of goods by the seller and the movement of goods from the State of Andhra Pradesh to another State are not inextricably connected and independent of each other. There is no incident of direct sale between the seller and the head office of the Respondent-Company in the State of Maharashtra. It is the branch office that purchases the goods and receives them subsequent to payment made by it to the seller and thereafter, transfers it to the head office of the Respondent-Company in the State of Maharashtra. The incidence of sale is complete once the purchaser, that is, the branch office renders the payment for the goods. Once the sale transaction concludes in the State of Andhra Pradesh only, the mere transport of goods from branch office in Andhra Pradesh to the head office in Maharashtra would not result in an inter-State sale. Therefore, the sale or purchase of the Beedi leaves in the present case do not occasion the movement of the goods outside the State in order to qualify as an inter-State sale Under Section 3(a) of the CST ACT and therefore, is exigible to tax under the Act.34. In view of the foregoing discussion, we are of the considered opinion that the impugned judgment and order passed by the High Court cannot be sustained and requires to be set aside.
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Commissioner Of Income-Tax, Calcutta Vs. Rai Bahadur Hardutroy Motilal Chamaria | having once filed an appeal cannot withdraw it. In other words, the assessee having filed an appeal and brought the machinery of the Act into working cannot prevent the Appellate Assistant Commissioner from ascertaining and settling the real sum to be assessed, by intimation of his withdrawal of the appeal. Even if the assessee refuses to appear at the hearing, the Appellate Assistant Commissioner can proceed with the enquiry and if ho finds that there has been an under-assessment, he can enhance the assessment [See Commr. of Income-tax, Punjab v. Nawab Shah Nawaz Khan, (1938) 6 ITR 370 = (AIR 1938 Lah 741)]. In this context reference may be made to the decision of the Court of Appeal, in The King v. Income Tax Special Commrs., 1936-1 KB 487 in which the tax-payer sought to withdraw a notice of appeal which had been given on his behalf against an additional assessment under Schedule D. The Commissioners of Inland Revenue were not satisfied that the assessment was adequate. The Special Commissioners then proposed to Proceed with the hearing of the appeal in the ordinary way. At that stage the tax-payer sought a writ of prohibition to prohibit the Special Commissioners from hearing the appeal. It was held by the Court of Appeal that notice of appeal having ones been given, the Commissioners were bound to proceed in accordance with the Income-tax Acts and determine the true amount of the assessment. At p. 493 of the Report Lord Wright observed as follows :"......... in making the assessment and in dealing with the appeals, the Commissioners are exercising statutory authority and a statutory duty which they are bound to carry out. They are not in the position of Judges deciding an issue between two particular parties. Their obligation is wide than that. It is to exercise their judgment on such material as comes before them and to obtain any material which they think is necessary and which they ought to have, and on that material to make the assessment or the estimate which the law requires them to make. They are not deciding a case inter parties; they are assessing or estimating the amount on which, in the interests of the country at large, the tax-payer ought to be taxed." 5. The principle that emerges as a result of the authorities of this Court is that the Appellate Assistant Commissioner has no jurisdiction.Under section 31(3) of the Act, to assess a source of income which has not been processed by the Income-tax Officer and which is not disclosed either in the returns filed by the assessee or in the assessment order, and therefore the Appellate Assistant Commissioner cannot travel beyond the subject-matter of the assessment. In other words, the power of enhancement under section 31 (3) of the Act is restricted to the subject-matter of assessment or the source of income which have been considered expressly or by clear implication by the Income tax Officer from the point of view of the taxability of the assessee.It was argued by Mr. Viswanath Iyer on behalf of the appellant that by applying the principle to the present case, the Appellate Assistant Commissioner had jurisdiction to enhance the quantum of income of the assessee. It was pointed out that the fact of alleged transfer of Rs. 5,85,000 to Forbesganj branch was noted by the Income-tax Officer and also the fact that it did not reach Forbesganj on the same day. So it was argued that in the appeal the Appellate Assistant Commissioner had jurisdiction to deal with the question of the taxability of the amount of Rs. 5,85,000 and to hold that it was taxable as undisclosed profits in the hands of the assessee. We are unable to accept the argument put forward on behalf of the appellant as correct. It is true that the Income-tax Officer has referred to the remittance of Rs. 5,85,000 from the Calcutta branch but the Income-tax Officer considered the despatch of this amount only with a view to test the genuineness of the entries relating to Rs. 4,30,000 in the books of the Forbesganj branch. It is manifest that the Income-tax Officer did not consider the remittance of Rs. 5,85,000 in the process of assessment from the point of view of its taxability. It is also manifest that the Appellate Assistant Commissioner has considered the amount of remittance of Rs. 5,85,000, from a different aspect namely, the point of view of its taxability. But since the Income-tax Officer has not applied his mind to the question of the taxability or non-taxability of the amount of Rs. 5,85,000, the Appellate Assistant Commissioner had no jurisdiction, in the circumstances of the present case, to enhance the taxable income of the assessee on the basis of this amount of Rs. 5,85,000 or of any portion thereof. As we have already stated it is not open to the Appellate Assistant Commissioner to travel outside the record, i. e., the return made by the assessee or the assessment order of the Income-tax Officer with a view to find out new sources of income and the power of enhancement under Section 31 (3) of the Act is restricted to the sources of income which have been the subject-matter of consideration by the Incometax Officer from the point of view of taxability. In this context consideration" does not mean "incidental" or "collateral" examination of any matter by the Income-tax Officer in the process of assessment. There must be something in the assessment order to show that the Income-tax Officer applied his mind to the particular subject-matter or the particular source of income with a view to its taxability or to its non-taxability and not to any incidental connection. In the present case it is manifest that the Income-tax Officer has not considered the entry of Rs. 5,85,000 from the point of view of its taxability and therefore the Appellate Assistant Commissioner had no jurisdiction, in an appeal under section 31 of the Act, to enhance the assessment. | 0[ds]It is necessary to bear in mind, in this connection, that it is only the assessee who has a right conferred under section 31 to prefer an appeal against the order of assessment made by the Income-tax Officer. If the assessee does not choose to appeal, the order of assessment becomes final subject to any power of revision that the Commissioner may have under section 33B of the Act. Therefore, it would have wholly erroneous to compare the powers of the Appellate Assistant Commissioner with the powers possessed by a court of appeal, under the Civil Procedure Code. The Appellate Assistant Commissioner is not an ordinary court of appeal. It is impossible to talk of a court of appeal when only one party to the original decision is entitled to appeal and not the other party, and in view of this peculiar position the statute has conferred very wide powers upon the Appellate Assistant Commissioner once an appeal is preferred to him by the assessee. It is necessary also to emphasise that the statute Provides that once an assessment comes before the Appellate Assistant Commissioner, his competence is not restricted to examining those aspects of the assessment which are complained of by the assessee; his competence ranges over the whole assessment and it is open to him to correct the Income-tax Officer not only with regard to a matter raised by the assessee but also with regard to and matter which has been considered by the Income-tax Officer and determined in the course of the assessment. It is also well established that an assessee having once filed an appeal cannot withdraw it. In other words, the assessee having filed an appeal and brought the machinery of the Act into working cannot prevent the Appellate Assistant Commissioner from ascertaining and settling the real sum to be assessed, by intimation of his withdrawal of the appeal. Even if the assessee refuses to appear at the hearing, the Appellate Assistant Commissioner can proceed with the enquiry and if ho finds that there has been an under-assessment, he can enhance the assessment5. The principle that emerges as a result of the authorities of this Court is that the Appellate Assistant Commissioner has no jurisdiction.Under section 31(3) of the Act, to assess a source of income which has not been processed by the Income-tax Officer and which is not disclosed either in the returns filed by the assessee or in the assessment order, and therefore the Appellate Assistant Commissioner cannot travel beyond the subject-matter of the assessment. In other words, the power of enhancement under section 31 (3) of the Act is restricted to the subject-matter of assessment or the source of income which have been considered expressly or by clear implication by the Income tax Officer from the point of view of the taxability of the assesseeWe are unable to accept the argument put forward on behalf of the appellant as correct. It is true that the Income-tax Officer has referred to the remittance of Rs. 5,85,000 from the Calcutta branch but the Income-tax Officer considered the despatch of this amount only with a view to test the genuineness of the entries relating to Rs. 4,30,000 in the books of the Forbesganj branch. It is manifest that the Income-tax Officer did not consider the remittance of Rs. 5,85,000 in the process of assessment from the point of view of its taxability. It is also manifest that the Appellate Assistant Commissioner has considered the amount of remittance of Rs. 5,85,000, from a different aspect namely, the point of view of its taxability. But since the Income-tax Officer has not applied his mind to the question of the taxability or non-taxability of the amount of Rs. 5,85,000, the Appellate Assistant Commissioner had no jurisdiction, in the circumstances of the present case, to enhance the taxable income of the assessee on the basis of this amount of Rs. 5,85,000 or of any portion thereof. As we have already stated it is not open to the Appellate Assistant Commissioner to travel outside the record, i. e., the return made by the assessee or the assessment order of the Income-tax Officer with a view to find out new sources of income and the power of enhancement under Section 31 (3) of the Act is restricted to the sources of income which have been the subject-matter of consideration by theIncometaxOfficer from the point of view of taxability. In this context consideration" does not mean "incidental" or "collateral" examination of any matter by the Income-tax Officer in the process of assessment. There must be something in the assessment order to show that the Income-tax Officer applied his mind to the particular subject-matter or the particular source of income with a view to its taxability or to its non-taxability and not to any incidental connection. In the present case it is manifest that the Income-tax Officer has not considered the entry of Rs. 5,85,000 from the point of view of its taxability and therefore the Appellate Assistant Commissioner had no jurisdiction, in an appeal under section 31 of the Act, to enhance the assessmentIt is necessary to bear in mind, in this connection, that it is only the assessee who has a right conferred under section 31 to prefer an appeal against the order of assessment made by theIncometaxOfficer. If the assessee does not choose to appeal, the order of assessment becomes final subject to any power of revision that the Commissioner may have under section 33B of the Act. Therefore, it would have wholly erroneous to compare the powers of the Appellate Assistant Commissioner with the powers possessed by a court of appeal, under the Civil Procedure Code. The Appellate Assistant Commissioner is not an ordinary court of appeal. It is impossible to talk of a court of appeal when only one party to the original decision is entitled to appeal and not the other party, and in view of this peculiar position the statute has conferred very wide powers upon the Appellate Assistant Commissioner once an appeal is preferred to him by the assessee. It is necessary also to emphasise that the statute Provides that once an assessment comes before the Appellate Assistant Commissioner, his competence is not restricted to examining those aspects of the assessment which are complained of by the assessee; his competence ranges over the whole assessment and it is open to him to correct theIncometaxOfficer not only with regard to a matter raised by the assessee but also with regard to and matter which has been considered by theIncometaxOfficer and determined in the course of the assessment. It is also well established that an assessee having once filed an appeal cannot withdraw it. In other words, the assessee having filed an appeal and brought the machinery of the Act into working cannot prevent the Appellate Assistant Commissioner from ascertaining and settling the real sum to be assessed, by intimation of his withdrawal of the appeal. Even if the assessee refuses to appear at the hearing, the Appellate Assistant Commissioner can proceed with the enquiry and if ho finds that there has been an, he can enhance the assessment[See Commr. of, Punjab v. Nawab Shah Nawaz Khan, (1938) 6 ITR 370 = (AIR 1938 Lah 741)]. In this context reference may be made to the decision of the Court of Appeal, in The King v. Income Tax Special Commrs.,1 KB 487 in which ther sought to withdraw a notice of appeal which had been given on his behalf against an additional assessment under Schedule D. The Commissioners of Inland Revenue were not satisfied that the assessment was adequate. The Special Commissioners then proposed to Proceed with the hearing of the appeal in the ordinary way. At that stage ther sought a writ of prohibition to prohibit the Special Commissioners from hearing the appeal. It was held by the Court of Appeal that notice of appeal having ones been given, the Commissioners were bound to proceed in accordance with theIncometaxActs and determine the true amount of the assessment. At p. 493 of the Report Lord Wright observed as follows :"......... in making the assessment and in dealing with the appeals, the Commissioners are exercising statutory authority and a statutory duty which they are bound to carry out. They are not in the position of Judges deciding an issue between two particular parties. Their obligation is wide than that. It is to exercise their judgment on such material as comes before them and to obtain any material which they think is necessary and which they ought to have, and on that material to make the assessment or the estimate which the law requires them to make. They are not deciding a case inter parties; they are assessing or estimating the amount on which, in the interests of the country at large, ther ought to be taxed." | 0 | 3,933 | 1,597 | ### Instruction:
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having once filed an appeal cannot withdraw it. In other words, the assessee having filed an appeal and brought the machinery of the Act into working cannot prevent the Appellate Assistant Commissioner from ascertaining and settling the real sum to be assessed, by intimation of his withdrawal of the appeal. Even if the assessee refuses to appear at the hearing, the Appellate Assistant Commissioner can proceed with the enquiry and if ho finds that there has been an under-assessment, he can enhance the assessment [See Commr. of Income-tax, Punjab v. Nawab Shah Nawaz Khan, (1938) 6 ITR 370 = (AIR 1938 Lah 741)]. In this context reference may be made to the decision of the Court of Appeal, in The King v. Income Tax Special Commrs., 1936-1 KB 487 in which the tax-payer sought to withdraw a notice of appeal which had been given on his behalf against an additional assessment under Schedule D. The Commissioners of Inland Revenue were not satisfied that the assessment was adequate. The Special Commissioners then proposed to Proceed with the hearing of the appeal in the ordinary way. At that stage the tax-payer sought a writ of prohibition to prohibit the Special Commissioners from hearing the appeal. It was held by the Court of Appeal that notice of appeal having ones been given, the Commissioners were bound to proceed in accordance with the Income-tax Acts and determine the true amount of the assessment. At p. 493 of the Report Lord Wright observed as follows :"......... in making the assessment and in dealing with the appeals, the Commissioners are exercising statutory authority and a statutory duty which they are bound to carry out. They are not in the position of Judges deciding an issue between two particular parties. Their obligation is wide than that. It is to exercise their judgment on such material as comes before them and to obtain any material which they think is necessary and which they ought to have, and on that material to make the assessment or the estimate which the law requires them to make. They are not deciding a case inter parties; they are assessing or estimating the amount on which, in the interests of the country at large, the tax-payer ought to be taxed." 5. The principle that emerges as a result of the authorities of this Court is that the Appellate Assistant Commissioner has no jurisdiction.Under section 31(3) of the Act, to assess a source of income which has not been processed by the Income-tax Officer and which is not disclosed either in the returns filed by the assessee or in the assessment order, and therefore the Appellate Assistant Commissioner cannot travel beyond the subject-matter of the assessment. In other words, the power of enhancement under section 31 (3) of the Act is restricted to the subject-matter of assessment or the source of income which have been considered expressly or by clear implication by the Income tax Officer from the point of view of the taxability of the assessee.It was argued by Mr. Viswanath Iyer on behalf of the appellant that by applying the principle to the present case, the Appellate Assistant Commissioner had jurisdiction to enhance the quantum of income of the assessee. It was pointed out that the fact of alleged transfer of Rs. 5,85,000 to Forbesganj branch was noted by the Income-tax Officer and also the fact that it did not reach Forbesganj on the same day. So it was argued that in the appeal the Appellate Assistant Commissioner had jurisdiction to deal with the question of the taxability of the amount of Rs. 5,85,000 and to hold that it was taxable as undisclosed profits in the hands of the assessee. We are unable to accept the argument put forward on behalf of the appellant as correct. It is true that the Income-tax Officer has referred to the remittance of Rs. 5,85,000 from the Calcutta branch but the Income-tax Officer considered the despatch of this amount only with a view to test the genuineness of the entries relating to Rs. 4,30,000 in the books of the Forbesganj branch. It is manifest that the Income-tax Officer did not consider the remittance of Rs. 5,85,000 in the process of assessment from the point of view of its taxability. It is also manifest that the Appellate Assistant Commissioner has considered the amount of remittance of Rs. 5,85,000, from a different aspect namely, the point of view of its taxability. But since the Income-tax Officer has not applied his mind to the question of the taxability or non-taxability of the amount of Rs. 5,85,000, the Appellate Assistant Commissioner had no jurisdiction, in the circumstances of the present case, to enhance the taxable income of the assessee on the basis of this amount of Rs. 5,85,000 or of any portion thereof. As we have already stated it is not open to the Appellate Assistant Commissioner to travel outside the record, i. e., the return made by the assessee or the assessment order of the Income-tax Officer with a view to find out new sources of income and the power of enhancement under Section 31 (3) of the Act is restricted to the sources of income which have been the subject-matter of consideration by the Incometax Officer from the point of view of taxability. In this context consideration" does not mean "incidental" or "collateral" examination of any matter by the Income-tax Officer in the process of assessment. There must be something in the assessment order to show that the Income-tax Officer applied his mind to the particular subject-matter or the particular source of income with a view to its taxability or to its non-taxability and not to any incidental connection. In the present case it is manifest that the Income-tax Officer has not considered the entry of Rs. 5,85,000 from the point of view of its taxability and therefore the Appellate Assistant Commissioner had no jurisdiction, in an appeal under section 31 of the Act, to enhance the assessment.
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the argument put forward on behalf of the appellant as correct. It is true that the Income-tax Officer has referred to the remittance of Rs. 5,85,000 from the Calcutta branch but the Income-tax Officer considered the despatch of this amount only with a view to test the genuineness of the entries relating to Rs. 4,30,000 in the books of the Forbesganj branch. It is manifest that the Income-tax Officer did not consider the remittance of Rs. 5,85,000 in the process of assessment from the point of view of its taxability. It is also manifest that the Appellate Assistant Commissioner has considered the amount of remittance of Rs. 5,85,000, from a different aspect namely, the point of view of its taxability. But since the Income-tax Officer has not applied his mind to the question of the taxability or non-taxability of the amount of Rs. 5,85,000, the Appellate Assistant Commissioner had no jurisdiction, in the circumstances of the present case, to enhance the taxable income of the assessee on the basis of this amount of Rs. 5,85,000 or of any portion thereof. As we have already stated it is not open to the Appellate Assistant Commissioner to travel outside the record, i. e., the return made by the assessee or the assessment order of the Income-tax Officer with a view to find out new sources of income and the power of enhancement under Section 31 (3) of the Act is restricted to the sources of income which have been the subject-matter of consideration by theIncometaxOfficer from the point of view of taxability. In this context consideration" does not mean "incidental" or "collateral" examination of any matter by the Income-tax Officer in the process of assessment. There must be something in the assessment order to show that the Income-tax Officer applied his mind to the particular subject-matter or the particular source of income with a view to its taxability or to its non-taxability and not to any incidental connection. In the present case it is manifest that the Income-tax Officer has not considered the entry of Rs. 5,85,000 from the point of view of its taxability and therefore the Appellate Assistant Commissioner had no jurisdiction, in an appeal under section 31 of the Act, to enhance the assessmentIt is necessary to bear in mind, in this connection, that it is only the assessee who has a right conferred under section 31 to prefer an appeal against the order of assessment made by theIncometaxOfficer. If the assessee does not choose to appeal, the order of assessment becomes final subject to any power of revision that the Commissioner may have under section 33B of the Act. Therefore, it would have wholly erroneous to compare the powers of the Appellate Assistant Commissioner with the powers possessed by a court of appeal, under the Civil Procedure Code. The Appellate Assistant Commissioner is not an ordinary court of appeal. It is impossible to talk of a court of appeal when only one party to the original decision is entitled to appeal and not the other party, and in view of this peculiar position the statute has conferred very wide powers upon the Appellate Assistant Commissioner once an appeal is preferred to him by the assessee. It is necessary also to emphasise that the statute Provides that once an assessment comes before the Appellate Assistant Commissioner, his competence is not restricted to examining those aspects of the assessment which are complained of by the assessee; his competence ranges over the whole assessment and it is open to him to correct theIncometaxOfficer not only with regard to a matter raised by the assessee but also with regard to and matter which has been considered by theIncometaxOfficer and determined in the course of the assessment. It is also well established that an assessee having once filed an appeal cannot withdraw it. In other words, the assessee having filed an appeal and brought the machinery of the Act into working cannot prevent the Appellate Assistant Commissioner from ascertaining and settling the real sum to be assessed, by intimation of his withdrawal of the appeal. Even if the assessee refuses to appear at the hearing, the Appellate Assistant Commissioner can proceed with the enquiry and if ho finds that there has been an, he can enhance the assessment[See Commr. of, Punjab v. Nawab Shah Nawaz Khan, (1938) 6 ITR 370 = (AIR 1938 Lah 741)]. In this context reference may be made to the decision of the Court of Appeal, in The King v. Income Tax Special Commrs.,1 KB 487 in which ther sought to withdraw a notice of appeal which had been given on his behalf against an additional assessment under Schedule D. The Commissioners of Inland Revenue were not satisfied that the assessment was adequate. The Special Commissioners then proposed to Proceed with the hearing of the appeal in the ordinary way. At that stage ther sought a writ of prohibition to prohibit the Special Commissioners from hearing the appeal. It was held by the Court of Appeal that notice of appeal having ones been given, the Commissioners were bound to proceed in accordance with theIncometaxActs and determine the true amount of the assessment. At p. 493 of the Report Lord Wright observed as follows :"......... in making the assessment and in dealing with the appeals, the Commissioners are exercising statutory authority and a statutory duty which they are bound to carry out. They are not in the position of Judges deciding an issue between two particular parties. Their obligation is wide than that. It is to exercise their judgment on such material as comes before them and to obtain any material which they think is necessary and which they ought to have, and on that material to make the assessment or the estimate which the law requires them to make. They are not deciding a case inter parties; they are assessing or estimating the amount on which, in the interests of the country at large, ther ought to be taxed."
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M/S. Salora International Ltd Vs. Commnr. Of Central Excise, New Delhi | here is whether the goods produced by the appellant can be described as ‘parts’ under the goods included in any of the headings of Chapter 84 or 85. In this respect, it is the contention of the appellant that the goods produced by them shall inevitably have to be considered as ‘parts’, as they are unable to receive a picture, which is said to be a fundamental requirement for a good to be considered as a ‘Television Receiver’. At the first sight, one may find force in this contention. As the test in Section Note 2 is simply that of whether the goods in question are ‘parts’, it may be convincingly said that as the goods transported by the appellant are incapable of functioning as ‘Television Receivers’, they shall have to be considered to be ‘parts’ thereof. 24. However, on closer scrutiny of the unique facts of this case, it is our view, the goods of the appellant may not be said to be ‘parts’ as per Section Note 2 to Section XVI of the Tariff. The appellant not only used to assemble all parts of the Television Receivers and make complete television sets, but the said Television Receivers were also operated in the manufacturing unit of the appellant and thoroughly checked and only upon it being confirmed that the Television Receivers were complete in all respects, they were disassembled and along with relevant material and individual serial numbers, sent to the various satellite units. Once the Television Receivers are assembled or are made completely finished goods, the manufacturing process is over and we are not concerned as to what happens subsequently. Whether they are sent to the satellite units of the appellant in its complete form or in a disassembled form is irrelevant.25. Looking to the facts of the case, it is not in dispute that complete Television was manufactured by the appellant and therefore, in our opinion, the Revenue had rightly classified the goods- product as complete Television set even though it was subsequently disassembled. 26. It is seen from the material on record, that at the time of the parts of the TV set being transported from the factory of the appellant, the parts manufactured by it are already identified as distinct units. As it can be seen from the affidavit of the Revenue, which has not been controverted by the appellant, the parts manufactured by it are matched and numbered within the factory itself, and also assembled together to receive pictures for the purpose of testing and quality control. The consequence of this is that the goods assembled at the satellite units would be identifiably the same as those assembled together by the appellant in its factory for the purpose of testing, as all such parts are already numbered and matched. This element of identifiability shall take the goods manufactured by the appellant away from being classified as ‘parts’, and they will be classified as identifiable Television Receivers. The fact that the packing material for the products is also manufactured and transported by the appellant further lends credence to this conclusion. 27. The facts in the case of Sony India Ltd. (supra) may be distinguished in this respect. In that case, the assessee had imported different parts of television sets in 94 different consignments. The said parts were imported separately in bulk, and thereafter, the process of matching, numbering and assembling was carried out once they were in the possession of the assessee. Therefore, it may be seen that what the assessee had imported in that case were merely various parts which could not yet be identified and distinguished as individual Television Receivers such as the parts transported by the appellant in this case. The said decision is, therefore, distinguishable on facts. 28. For further clarification, it may also be stated that if the appellant had been in the practice of simply manufacturing and transporting parts of Television Receivers in bulk, while leaving the matching and numbering functions to be done at the satellite units, then it could have availed the benefit of Section Note 2, because in such a case, there would not have been any production of identifiable television sets such as in the present case.29. Once the question of applicability of Section Note 2 to Section XVI of the Tariff is answered in the above manner, i.e. in the negative, there may be seen to be no bar to the application of Rule 2 of the Rules for Interpretation to the goods transported by the appellant. Consequently, the only question that remains is with respect to whether such goods shall fall foul of the said Rule.30. In this regard, despite the attempts of the appellant to establish otherwise, we are unable to see how the goods transported by them shall not be covered by the Rule, especially as a complete or finished article, ‘presented unassembled or disassembled’. The terminology of the Rule is wide enough to cover the goods transported by the appellant, and we are not convinced that the processes required to be carried out at the satellite units are so vital to the manufacture of the Television Receivers so as to render the goods transported by the appellant lacking the ‘essential character’ of Television Receivers. Rule 2(a) of the Rules for Interpretation has been couched in wide terms, and in terms of this Rule, it is our view that the goods produced by the appellant do in fact possess the essential character of Television Receivers.31. The appellant had also raised the plea of double-taxation; however, in our view once the question of classification of the goods transported by the appellant has been answered in the above manner, it is not open to us to grant the appellant any relief on this ground alone. Further, it is always open to the satellite units of the appellant to avail input tax credit on the duty paid by the appellant on the goods transported by them.32. In view of the facts stated hereinabove, we | 0[ds]24. However, on closer scrutiny of the unique facts of this case, it is our view, the goods of the appellant may not be said to beas per Section Note 2 to Section XVI of the Tariff. The appellant not only used to assemble all parts of the Television Receivers and make complete television sets, but the said Television Receivers were also operated in the manufacturing unit of the appellant and thoroughly checked and only upon it being confirmed that the Television Receivers were complete in all respects, they were disassembled and along with relevant material and individual serial numbers, sent to the various satellite units. Once the Television Receivers are assembled or are made completely finished goods, the manufacturing process is over and we are not concerned as to what happens subsequently. Whether they are sent to the satellite units of the appellant in its complete form or in a disassembled form is irrelevant.25. Looking to the facts of the case, it is not in dispute that complete Television was manufactured by the appellant and therefore, in our opinion, the Revenue had rightly classified the goods- product as complete Television set even though it was subsequentlymay also be stated that if the appellant had been in the practice of simply manufacturing and transporting parts of Television Receivers in bulk, while leaving the matching and numbering functions to be done at the satellite units, then it could have availed the benefit of Section Note 2, because in such a case, there would not have been any production of identifiable television sets such as in the present case.29. Once the question of applicability of Section Note 2 to Section XVI of the Tariff is answered in the above manner, i.e. in the negative, there may be seen to be no bar to the application of Rule 2 of the Rules for Interpretation to the goods transported by the appellant. Consequently, the only question that remains is with respect to whether such goods shall fall foul of the said Rule.30. In this regard, despite the attempts of the appellant to establish otherwise, we are unable to see how the goods transported by them shall not be covered by the Rule, especially as a complete or finished article, ‘presented unassembled orThe terminology of the Rule is wide enough to cover the goods transported by the appellant, and we are not convinced that the processes required to be carried out at the satellite units are so vital to the manufacture of the Television Receivers so as to render the goods transported by the appellant lacking the ‘essentialof Television Receivers. Rule 2(a) of the Rules for Interpretation has been couched in wide terms, and in terms of this Rule, it is our view that the goods produced by the appellant do in fact possess the essential character of Television Receivers.31. The appellant had also raised the plea of double-taxation; however, in our view once the question of classification of the goods transported by the appellant has been answered in the above manner, it is not open to us to grant the appellant any relief on this ground alone. Further, it is always open to the satellite units of the appellant to avail input tax credit on the duty paid by the appellant on the goods transported by them. | 0 | 3,642 | 603 | ### Instruction:
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here is whether the goods produced by the appellant can be described as ‘parts’ under the goods included in any of the headings of Chapter 84 or 85. In this respect, it is the contention of the appellant that the goods produced by them shall inevitably have to be considered as ‘parts’, as they are unable to receive a picture, which is said to be a fundamental requirement for a good to be considered as a ‘Television Receiver’. At the first sight, one may find force in this contention. As the test in Section Note 2 is simply that of whether the goods in question are ‘parts’, it may be convincingly said that as the goods transported by the appellant are incapable of functioning as ‘Television Receivers’, they shall have to be considered to be ‘parts’ thereof. 24. However, on closer scrutiny of the unique facts of this case, it is our view, the goods of the appellant may not be said to be ‘parts’ as per Section Note 2 to Section XVI of the Tariff. The appellant not only used to assemble all parts of the Television Receivers and make complete television sets, but the said Television Receivers were also operated in the manufacturing unit of the appellant and thoroughly checked and only upon it being confirmed that the Television Receivers were complete in all respects, they were disassembled and along with relevant material and individual serial numbers, sent to the various satellite units. Once the Television Receivers are assembled or are made completely finished goods, the manufacturing process is over and we are not concerned as to what happens subsequently. Whether they are sent to the satellite units of the appellant in its complete form or in a disassembled form is irrelevant.25. Looking to the facts of the case, it is not in dispute that complete Television was manufactured by the appellant and therefore, in our opinion, the Revenue had rightly classified the goods- product as complete Television set even though it was subsequently disassembled. 26. It is seen from the material on record, that at the time of the parts of the TV set being transported from the factory of the appellant, the parts manufactured by it are already identified as distinct units. As it can be seen from the affidavit of the Revenue, which has not been controverted by the appellant, the parts manufactured by it are matched and numbered within the factory itself, and also assembled together to receive pictures for the purpose of testing and quality control. The consequence of this is that the goods assembled at the satellite units would be identifiably the same as those assembled together by the appellant in its factory for the purpose of testing, as all such parts are already numbered and matched. This element of identifiability shall take the goods manufactured by the appellant away from being classified as ‘parts’, and they will be classified as identifiable Television Receivers. The fact that the packing material for the products is also manufactured and transported by the appellant further lends credence to this conclusion. 27. The facts in the case of Sony India Ltd. (supra) may be distinguished in this respect. In that case, the assessee had imported different parts of television sets in 94 different consignments. The said parts were imported separately in bulk, and thereafter, the process of matching, numbering and assembling was carried out once they were in the possession of the assessee. Therefore, it may be seen that what the assessee had imported in that case were merely various parts which could not yet be identified and distinguished as individual Television Receivers such as the parts transported by the appellant in this case. The said decision is, therefore, distinguishable on facts. 28. For further clarification, it may also be stated that if the appellant had been in the practice of simply manufacturing and transporting parts of Television Receivers in bulk, while leaving the matching and numbering functions to be done at the satellite units, then it could have availed the benefit of Section Note 2, because in such a case, there would not have been any production of identifiable television sets such as in the present case.29. Once the question of applicability of Section Note 2 to Section XVI of the Tariff is answered in the above manner, i.e. in the negative, there may be seen to be no bar to the application of Rule 2 of the Rules for Interpretation to the goods transported by the appellant. Consequently, the only question that remains is with respect to whether such goods shall fall foul of the said Rule.30. In this regard, despite the attempts of the appellant to establish otherwise, we are unable to see how the goods transported by them shall not be covered by the Rule, especially as a complete or finished article, ‘presented unassembled or disassembled’. The terminology of the Rule is wide enough to cover the goods transported by the appellant, and we are not convinced that the processes required to be carried out at the satellite units are so vital to the manufacture of the Television Receivers so as to render the goods transported by the appellant lacking the ‘essential character’ of Television Receivers. Rule 2(a) of the Rules for Interpretation has been couched in wide terms, and in terms of this Rule, it is our view that the goods produced by the appellant do in fact possess the essential character of Television Receivers.31. The appellant had also raised the plea of double-taxation; however, in our view once the question of classification of the goods transported by the appellant has been answered in the above manner, it is not open to us to grant the appellant any relief on this ground alone. Further, it is always open to the satellite units of the appellant to avail input tax credit on the duty paid by the appellant on the goods transported by them.32. In view of the facts stated hereinabove, we
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24. However, on closer scrutiny of the unique facts of this case, it is our view, the goods of the appellant may not be said to beas per Section Note 2 to Section XVI of the Tariff. The appellant not only used to assemble all parts of the Television Receivers and make complete television sets, but the said Television Receivers were also operated in the manufacturing unit of the appellant and thoroughly checked and only upon it being confirmed that the Television Receivers were complete in all respects, they were disassembled and along with relevant material and individual serial numbers, sent to the various satellite units. Once the Television Receivers are assembled or are made completely finished goods, the manufacturing process is over and we are not concerned as to what happens subsequently. Whether they are sent to the satellite units of the appellant in its complete form or in a disassembled form is irrelevant.25. Looking to the facts of the case, it is not in dispute that complete Television was manufactured by the appellant and therefore, in our opinion, the Revenue had rightly classified the goods- product as complete Television set even though it was subsequentlymay also be stated that if the appellant had been in the practice of simply manufacturing and transporting parts of Television Receivers in bulk, while leaving the matching and numbering functions to be done at the satellite units, then it could have availed the benefit of Section Note 2, because in such a case, there would not have been any production of identifiable television sets such as in the present case.29. Once the question of applicability of Section Note 2 to Section XVI of the Tariff is answered in the above manner, i.e. in the negative, there may be seen to be no bar to the application of Rule 2 of the Rules for Interpretation to the goods transported by the appellant. Consequently, the only question that remains is with respect to whether such goods shall fall foul of the said Rule.30. In this regard, despite the attempts of the appellant to establish otherwise, we are unable to see how the goods transported by them shall not be covered by the Rule, especially as a complete or finished article, ‘presented unassembled orThe terminology of the Rule is wide enough to cover the goods transported by the appellant, and we are not convinced that the processes required to be carried out at the satellite units are so vital to the manufacture of the Television Receivers so as to render the goods transported by the appellant lacking the ‘essentialof Television Receivers. Rule 2(a) of the Rules for Interpretation has been couched in wide terms, and in terms of this Rule, it is our view that the goods produced by the appellant do in fact possess the essential character of Television Receivers.31. The appellant had also raised the plea of double-taxation; however, in our view once the question of classification of the goods transported by the appellant has been answered in the above manner, it is not open to us to grant the appellant any relief on this ground alone. Further, it is always open to the satellite units of the appellant to avail input tax credit on the duty paid by the appellant on the goods transported by them.
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IFFCO TOKIO GENERAL INSURANCE COMPANY LTD Vs. PEARL BEVERAGES LTD | The appellant has also stated that he does not have any Medical Report to show the level of alcohol in the blood. 101. We would think that it would not be appropriate to conflate the two situations, viz., the requirement under Section 185 of the MV Act and an Exclusion Clause in the Contract of Insurance in question. The requirements of drunken driving under Section 185 of the MV Act, can be proved only with reference to the presence of the alcohol concentration which is 30 mg per 100 ml of blood. This corresponds to 0.03 per cent BAC. In fact, it is noteworthy that in Sweden and in China, it is 0.02. 102. As far as establishing the contention by the insurer in a Clause of the nature, we are dealing with, viz., a case where the insurer alleges that the driver was driving the vehicle under the insurance of alcohol, it is all very well, if there is a criminal case and evidence is obtained therein, which shows that the driver had 30 mg/100 ml or more. Or in other words, if the BAC level was 0.03 or more. We would think that in a case where, there is a blood test of breath test, which indicates that there is no consumption at all, undoubtedly, it would not be open to the insurer to set up the case of exclusion. The decision of this Court in Bachubhai Hassanalli Karyani (supra) was rendered under Section 117 of the Motor Vehicles Act, 1939, prior to its substitution in 1977, and what is more it turned on the evidence also. 103. However, in cases, where there is no scientific material, in the form of test results available, as in the case before us, it may not disable the insurer from establishing a case for exclusion. The totality of the circumstances obtaining in a case, must be considered. The scope of the enquiry, in a case under the Consumer Protection Act, which is a summary proceeding, cannot be lost sight of. A consumer, under the Act, can succeed, only on the basis of proved deficiency of service. The deficiency of service would arise only with reference to the terms of the contract and, no doubt, the law which surrounds it. If the deficiency is not established, having regard to the explicit terms of the contract, the consumer must fail. 104. It is, in this regard, we would think that an exclusion of the nature involved in this case, must be viewed. We can safely proceed in this case, on the basis that the person driving the vehicle had consumed alcohol. We can proceed on the basis that he drove the car after having consumed alcohol. It is true that the exact quantity, which he had consumed, is not forthcoming. The fact that he smelt of alcohol, is indisputable, having regard to the contents of the FIR and also the MLC. He was accompanied by PW3. PW3 also smelt of alcohol. The incident took place in the early hours of 22.12.2007. It happened at New Delhi. It is further clear that it happened in the close vicinity of India Gate. The driver and the passenger were in their twenties. At that time of the day, viz., the early hours, the version of the parties must be appreciated without reference to any possibility of the accident happening as a result of any sudden incident happening, as for instance, attempted crossing of a person or an animal, out by the FIR. There is simply no such case for the respondent. It is clear that we can safely proceed on the basis that the vehicle was driven in a rash and negligent manner, having regard to the conviction entered under Section 279 of the IPC. This is also to be viewed in the context of the respondent putting up the case that the driver had not consumed alcohol and that the case, even under Section 279 of the IPC was a false case. Still further, if we examine the exact nature of the accident, it speaks eloquently for the influence, which the consumption of alcohol had produced on the driver of the vehicle. The car, which is undoubtedly a Porsche, which we presume, has a very powerful engine and capable of achieving enormous speed, is reported to have gone out of control and hit at a massive force with the footpath of the road. It overturned. It caught fire. In fact, it is the case of the respondent that the car was a complete wreck. It was described as a total loss. The vehicles of the fire brigade came to douse the fire. We are conscious that speed and its impact can be relative to the road, the traffic and the speed limits. The FIR refers to the car being driven very fast. A person can be rash and negligent without having been under the influence of alcohol. At the same time, being under the influence of alcohol can also lead to rash and negligent driving. They are not incompatible. 105. This Court would not be remiss, if it takes into account the improbability of any traffic worth the name at the time of the accident. While we may be in agreement with the respondent that it would be for the insurer to make out a case, for pressing the Exclusion Clause, we cannot be oblivious to the fact that there is no material in the pleadings of the respondent or in the evidence tendered for explaining the accident. We can take judicial notice of the fact that the roads in the Capital City, particularly in the area, where the accident occurred, are sufficiently wide and the vehicle dashing against the footpath and turning turtle and catching fire, by itself, does point to, along with the fact that the alcohol which was consumed manifests contemporaneously in the breath of the driver, to conclude that alcohol did play the role, which, unfortunately, it is capable of producing. | 1[ds]21. The expression under the influence of intoxicating liquor does not appear to be of recent origin in a Contract of Insurance. It has been around for quite a while. In this regard, we may notice the judgments of the English Courts. In Mair (Administratrix) v. Railway Passengers Assurance Co. (Limited) 1877 37 L.T. 356 DC, Lord Coleridge, the Chief Justice made the following observations, while dealing with the very same words under the influence of intoxicating liquor, and held as follows:… I should think, speaking only for myself, that the words under the influence of intoxicating liquor would be sufficiently satisfied by construing them to mean under such influence of intoxicating liquor as disturbs the balance of a mans mind. There is a point up to which any stimulating liquor, with most people at least, possibly benefits, at any rate for the time, the exercise of the intellect. There is a point beyond which it certainly impedes – disturbs it. I concede that it is very difficult even in language – certainly in the English language – to ascertain with precision where that point is; but it is enough to say that there is a point, and it seems to me these words would be satisfied when the influence of intoxicating liquor is found in point of fact to be such as to disturb the quiet and equable exercise of the intellectual faculties of the man who has taken the liquor. Of course, if I think there is evidence to satisfy me that the intoxication in this case was enough to have gone to the point of contributing to the accident, it follows a fortiori that it had arrived at the disturbing point which I think, speaking for myself, would be enough to satisfy the words of the proviso.…22. This, in fact, was not a case where a vehicle was being driven and it was alleged that the driver was under the influence of alcohol. On the other hand, it was a case where the deceased had been drinking for a while. In this condition he rudely accosted a woman and tried to put his arms around her. He was knocked down by a man who was in the company of the woman. He died as a result of the injury. The insurer sought protection under a clause which excluded liability if the assured was under the influence of intoxication of liquor.27. Obviously, there are certain parallels as there are distinctions between facts of the case before us. The similarity lies in the fact that the driver in the case before us also smelt of alcohol. The other similarity lies in the nature of an accident. The differences, however, lie in the fact that in the case referred to, there was evidence of the actual quantity and nature of the alcohol which was consumed by the driver. In the case before us, there is no evidence either recording the exact nature of alcoholic drink which was consumed by the driver and there is also no material as to the quantity consumed by him. There is no evidence, in fact, as to the exact point of time when the alcohol was consumed by the driver in the case before us. Whereas on the evidence adduced in the case before the Court in the decision referred to, there was evidence as to the time when the alcohol was consumed. Further the driver offered an explanation as to how the accident unfolded when there is none in the case before us.29. It may be noticed that both the trial Judge as well as the Appellate Court did not lay any store by the blood test and also the conviction and therefore what is significant is that a finding could be rendered in an action that the insurer was not liable if the driver, in contravention of the policy was under the influence of intoxicating liquor and the matter goes to the evidence which would support such a finding.30. As far as the view taken by the President of the Court that the Trial Judge was not entitled to rely upon the fact that the defendant drank a lager upon an empty stomach, we are unable to endorse the same. This is for the reason that there is enough material available to show that when one drinks on an empty stomach, there is greater and faster infusion of the alcohol into the system leading to increased Blood Alcohol Concentration (BAC) level. This is for the reason that when liquor is consumed on an empty stomach, the liquor moves on from the stomach unobstructed into the small intestine from where 80% of the absorption of alcohol takes place. Therefore, this does indeed play a role in the Court assessing and finding, that given the other circumstances to support the finding of consumption of alcohol as to whether the alcohol has contributed to the occurrence of the accident. It is also not irrelevant to bear in mind that a person who is alcohol tolerant which means that having become accustomed to consume liquor, the brain in particular is able to hold up to the alcoholic consumption and deal with its effect whereas when a novice or a beginner consumes alcohol, its consequences would be different.35. Therefore, an analysis of the principles as laid down both by the English Courts/Scottish Court and decisions from the United States would persuade us to hold as follows:The exclusion from the liability of the Insurer would depend upon the exact terms of the Insurance. We are in this case not dealing with a third-party claim. Under the aegis of the Motor Vehicles Act, we are not oblivious of the provisions of Section 149(2) in the unamended provisions of the Motor Vehicles Act,1988 which are captured in Section 150 of the present avtaar after the amendment as regards the defences available to the Insurer regarding such claims. We are dealing with a case of own damage and the clause which extricates the Insurer on the basis of the driver being under the influence of alcohol, inter alia. We would find that the there are two variants. One of the models is represented by American cases where all that required is that the person has in his body alcohol in any degree. Under the said model, it need not influence his conduct. Under the said model, it is not necessary for the Insurer to show that person concerned was intoxicated or under the influence of intoxicated liquor.36. This brings us to the other model which model is applicable in the facts of the case, viz., the insurer must show that the person driving the vehicle was under the influence of liquor. The contrast between the models is stark and perceptible. As far as the exclusion of the nature we are concerned with, which requires driving of the vehicle by a person under the influence of intoxicating liquor, it would appear to be clear that mere presence of alcohol in any small degree would not be sufficient.This is for the reason that the court cannot re- write the contract and hold that the mere presence of the alcohol, in the slightest degree, is sufficient to exclude the liability of the insurer. It requires something more, namely, that the driver of the vehicle was at the time of the accident acting under the influence of intoxicating liquor. Now it is clear that the decisions of the English Courts are closer home and of assistance in the laying down of the law. It must be shown that in the facts and circumstances of each case that the consumption of liquor had, if not caused the accident, which undoubtedly would bring the accident within the mischief of the clause but at least contributed in a perceptible way to the causing of the accident.43. It will be noticed immediately that the decision of this Court rendered in Bachubhai Hassanalli Karyani v. State of Maharashtra (1971) 3 SCC 930 relied upon by the respondent arose under Section 117 of Motor Vehicles Act, 1939 which required not merely that the person was under the influence of drink but it was to be to such an extent as to render him incapable of exercising proper control over the vehicle. Section 117 after its substitution in 1977, on the other hand, carved out a criminal offence insofar as alcohol is concerned, on the basis that the driver had in his blood, alcohol in any quantity, however small the quantity was. This was similar in fact to the clauses in the contracts of insurance obtaining in the United States which we have referred to (supra). No doubt, this became associated with the presence of the smallest quantity of alcohol in the blood. As far as Section 185 of the Motor Vehicles Act, 1988 is concerned, the offence is committed if there is a specified amount of alcohol found namely, 30 mg in 100 ml. of blood. In this regard, we may profitably refer to the law in the United Kingdom corresponding to the Motor Vehicles Act and also an early decision of the Bombay High Court interpreting a statute dealing with the issue.44. In the U.K. Road Transport Traffic Act, 1930, Section 15(1) made it an offence to drive or attempt to drive or to be in charge of a motor vehicle while under the influence of drink or drug to such an extent as to be incapable of having proper control of the vehicle. Section 11 provided for punishment for dangerous driving. In (1931) 22 Cr. App 172, the appellant was convicted under Section 15 and acquitted under Section 11. The Court held as follows:… We have considered that finding with great care, but, upon the whole, and not without hesitation, we have come to the conclusion that. notwithstanding the summing up, it is ambiguous. The jury ought to have been asked whether they meant-by their last answer that the appellant was under the influence of drink to such an extent as to be incapable of having proper control of the vehicle, and we cannot reject the view that, if that question had been pointedly put, they might have answered in the negative or said that they were not agreed on that point. …45. This view appears to hold good even now. In other words, being under the influence of alcohol is different from being under the influence of alcohol to the extent as declared in such a provision. However statutory changes that occurred make it irrelevant.46. In this regard, it is pertinent to note the decision of the High Court of Bombay reported in Emperor vs. Rama Deoji AIR 1928 BOM 231 . Rule 27-A of the Motor Vehicles Rules provided that no person shall, when intoxicated, drive a motor vehicle in a public place. The contention raised by the accused was that his conviction was improper as the charge actually was merely one of being under the influence of liquor. There is a distinction between being under the influence of liquor and being intoxicated, it was contended. The Court held, inter alia, as follows:4. In our opinion the word intoxicated cannot be read in this very extreme sense. It in fact corresponds with the word drunk that is generally used in similar English enactments. No doubt, there has been a good deal of controversy in England as to when a person can properly be said to be drunk, and a distinction has been made between his being drunk and his being merely under the influence of liquor. I do not, however, think it is necessary for us in this particular case to go into any controversy of that kind. The fact remains that the words under the influence of liquor do sufficiently represent the meaning of the word intoxicated, except that it may be said that the latter word expresses a degree of influence which is not sufficiently expressed in the words under the influence of liquor. But this question of degree is one that is at any rate involved in the words; and if the accused intended to assert that he was not under the influence of liquor to a degree that really mattered in regard to his exercising due care and judgment in driving the car, then that should have been stated by the accused clearly, so as to raise an issue on the point. On the contrary he pleaded guilty; and in view of the fact that his act in suddenly swerving was one of extreme rashness, as admitted by Mr. Bhandarkar himself, the circumstances clearly point to the accuseds understanding that he was pleading guilty to a degree of intoxication which would bring the case under this rale. There has, in our opinion, been no misapprehension of the accused, so as to justify our holding that he did not plead guilty to a breach of this particular rule.52. A conspectus of the aforesaid provisions would lead us to the following conclusions:Section 185 of the Motor Vehicles Act creates a criminal offence. The short title of Section 185 undoubtedly proclaims that it purports to deal with driving by a drunken person or by a person under the influence of drugs. The offence as far as driving by a drunken person is concerned, was built around breach of an objective standard, viz., the presence of alcohol in the driver in excess of 30 mg per 100 ml. of blood detected in a test of breath analyser. The Section mandates the proving of the objective criteria of presence of alcohol exceeding 30 mg per 100 ml. of blood in a test by a breath analyser. It is here that Section 203 of the Motor Vehicles Act becomes apposite. It empowers the police officer to require any person driving or attempting to drive motor vehicle in a public place to provide one or more specimen of breath for breath test, if Police Officer or Officer of Motor Vehicle Department has reasonable cause to suspect the driver has committed an offence u/s 185. Section 203(2) deals with the situation where the vehicle is involved in an accident in a public place. In such circumstances, on a Police Officer in uniform entertaining any reasonable cause to suspect that the person driving the vehicle, at the time of the accident, had alcohol in his blood, inter alia, he may require the person to provide specimen of his breath in the breath test in the manner provided. Section 203(6) declares that the result of the breath test made under Section 203 shall be admissible in evidence. Section 203 contemplates arrest without warrant being effected, if the test indicated the presence of alcohol in the breath test. Section 204 follows up on a person who is arrested under Section 203. It, inter alia, provides that a person who has been arrested under Section 203 is to provide to such medical practitioner as may be produced by such police officer, a specimen of his blood for a laboratory test, if either it appears to the police officer that the breath test reveals the presence of alcohol in the blood of such person or such person when given the opportunity to submit to a breath test, has refused, omitted or failed to do so. The result of the laboratory test is also made admissible.53. It is clear that Section 185 deals with driving or attempting driving of a motor vehicle a person with alcohol in excess of 30 mg per 100 ml in blood which is detected in a test of breath analyser. Being a criminal offence, it is indisputable that the ingredients of the offence must be established as contemplated by law which means that the case must be proved beyond reasonable doubt and evidence must clearly indicate the level of alcohol in excess of 30 mg in 100 ml blood and what is more such presence must be borne out by a test by a breath analyser. We may also notice that with effect from 01.09.2019, the following words have been added to Section 185, that is or in any other test including laboratory test.54. It is to be noticed that this Court had occasion to deal with the question whether the prosecution under section 185 can succeed in the absence of a test by a breath analyser. In the decision reported in State through PS Lodhi Colony v. Sanjeev Nanda 2012 (8) SCC 450, the accused escaped from the scene of occurrence. He could not, therefore, be subjected to breath test analyser instantaneously or to provide a specimen of his breath for a breath test or a specimen for his blood for a laboratory test. Dealing with these provisions, K.S. Radhakrishnan, J., in his concurring judgment has held as follows:82. The accused, in this case, escaped from the scene of occurrence, therefore, he could not be subjected to breath analyser test instantaneously, or to take or provide specimen of his breath for a breath test or a specimen of his blood for a laboratory test. The cumulative effect of the provisions, referred to above, would indicate that the breath analyser test has a different purpose and object. The language of the above sections would indicate that the said test is required to be carried out only when the person is driving or attempting to drive the vehicle. The expressions while driving and attempting to drive in the above sections have a meaning in situations, praesenti. In the presence such of alcohol in the blood has to be determined instantly so that the offender may be prosecuted for drunken driving. A breath analyser test is applied in such situations so that the alcohol content in the blood can be detected. The breath analyser test could not have been applied in the case on hand since the accused had escaped from the scene of the accident and there was no question of subjecting him to a breath analyser test instantaneously. All the same, the first accused was taken to AIIMS Hospital at 12.29 p.m. on 10-1-1999 when his blood sample was taken by Dr Madhulika Sharma, Senior Scientific Officer (PW 16). While testing the alcohol content in the blood, she noticed the presence of 0.115% weight/volume ethyl alcohol. The report exhibited as PW-16/A was duly proved by the doctor. Over and above, in her cross-examination she had explained that 0.115% would be equivalent to 115 mg per 100 ml of blood and deposed that as per traffic rules, if the person is under the influence of liquor and alcohol content in blood exceeds 30 mg per 100 ml of blood, the person is said to have committed the offence of drunken driving.83. Further, the accused was also examined in the morning of 10-1- 1999 by Dr T. Milo, PW 10, Senior Resident, Department of Forensic Medicine, AIIMS, New Delhi who reported as follows:On examination, he was conscious, oriented, alert and cooperative. Eyes were congested, pupils were bilaterally dilated. The speech was coherent and gait unsteady. Smell of alcohol was present.84. Evidence of the experts clearly indicates the presence of alcohol in blood of the accused beyond the permissible limit, that was the finding recorded by the courts below. The judgments referred to by the counsel that if a particular procedure has been prescribed under Sections 185 and 203, then that procedure has to be followed, has no application to the facts of this case. The judgments rendered by the House of Lords were related to the provision of the Road Safety Act, 1967, the Road Traffic Act, 1972, etc. in UK and are not applicable to the facts of this case.55. No doubt in the case noted above, the presence of the alcohol content was much more (that is 0.115% than the permissible limit).It is also the case where the accident caused the deaths of six persons. The above view, no doubt, turned on the facts which rendered the taking of the test by breath analyser impossible. It was also found that the first accused had been taken to the All India Institute of Medical Science (AIIMS) at 12.29 p.m. on 10.01.1999 and the blood samples revealed alcohol far in excess of the limit indicated in Section 185. Also, after the judgment, with effect from 01.09.2019, a laboratory test or any other test aids the prosecution to establish a case under section 185.56. We have set out the provisions of Sections of 185, 203 and 204 to deal with the argument of the parties based on the impact of these provisions, upon the operation of exclusion clause of the Contract of Insurance in a case, which does not involve any third party. The Contract of Insurance, in the present case, is a comprehensive Contract of Insurance dealing with own damage and, no doubt, also third party. What is, however, involved in this case, is the liability alleged with the Insurer under Clause (A), which deals with own damage.57. In regard to a claim involved in this case as aforesaid, we are of the view that there is nothing in law which would otherwise disentitle the appellant from setting up the case that the exclusion clause would disentitle the respondent from succeeding. As to whether it is a case of driving of the vehicle under the influence of the alcohol is different matter, altogether. The requirement of Section 185 is in the context of a criminal offence. While it may be true that if there is a conviction under Section 185, it would, undoubtedly, fortify the Insurer in successfully invoking Exclusion Clause 2(c), is the reverse also true? We expatiate. If prosecution has not filed a case under Section 185, that would not mean that a competent Forum in an action alleging deficiency of service, under the Consumer Protection Act, is disabled from finding that the vehicle was being driven by the person under the influence of the alcohol. The presence of alcohol in excess of 30 mg per 100 ml. of blood is not an indispensable requirement to enable an Insurer to successfully invoke the clause. What is required to be proved is driving by a person under the influence of the alcohol. Drunken driving, a criminal offence, under Section 185 along with its objective criteria of the alcohol-blood level, is not the only way to prove that the person was under the influence of alcohol. If the Breath Analyser or any other test is not performed for any reason, the Insurer cannot be barred from proving his case otherwise.58. What we are dealing in this case is, construction of words in a contract between the parties. There is no case for the respondent that the terms of the contract to exclude the liability of the appellant, are in any way illegal. We can without difficulty imagine a circumstance in which the proposition that should the Insurer fail to establish a case in terms of Section 185 BAL (Blood Analyser Test), it would fail, may not be the proper approach to the issue. It is not difficult to contemplate that the accident may take place with the driver being under the influence of alcohol and neither the Breath Test nor the laboratory test is done. A driver after the accident, may run away. A test may never be performed. However, there may be evidence available which may indicate that the vehicle in question was being driven at the time of the accident by a person under the influence of alcohol. It cannot then be said that merely because there is no test performed, the Insurer would be deprived of its right to establish a case which is well within its rights under the contract.61. We notice that Blood Alcohol Concentration or BAC is, thus, the concentration of alcohol in a persons blood. In India, the permissible BAC level is pegged at 30 mg of alcohol in 100 ml. of blood in Section 185 of the MV Act, 1988.This corresponds to 0.03 percentage of alcohol in the blood, beyond which, it is an offence under Section 185 to drive or attempt to drive as declared. As noticed, BAC is correlated to a number of variables. It is affected by gender and body weight. The male has more water content than a female. On same quantity drunk, the latter builds up greater BAC than the former. BAC is also affected clearly on whether the person drank on an empty stomach or not. The liver metabolises ordinarily a standard drink at the rate of a drink in an hour. The frequency, at which the drinks are taken, impacts the BAC level. Even the genes play their part.68. Absorbed alcohol enters the blood stream and is carried all through the body. Upon reaching the body, simultaneously the body works to eliminate it. The 10% of alcohol is removed by the kidneys (urine) and lungs (breath). Left- out alcohol is oxidized by the liver, converting alcohol into acetaldehyde first and then further converted to acetic acid.69. Brain chemistry is affected by alcohol through alteration of neurotransmitters. Neurotransmitters are chemical messengers that send out the signals all through the body and control thought processes, behaviour and sensation processes. Neurotransmitters are either excitatory (excite brain electrical motion) or inhibitory (decrease brain electrical motion). Alcohol increases the effects of the inhibitory neurotransmitter GABA in the brain. GABA causes the lethargic movements and garbled speech that often occur in alcoholics. At the same time, alcohol inhibits the excitatory neurotransmitter glutamate, which results in a suppression of a similar type of physiological slowdown. In addition, alcohol also increases the amount of chemical dopamine in the brain centre, which creates the feeling of pleasure after drinking alcohol. Just after a few drinks, the physical effects of alcohol become perceptible. The level of BAC rises when the body takes up alcohol faster than it can release it.It is not clear whether the odor in the breath was sought to be discerned without any devise.74. It must be noted that the Report, thus, indicates that the Investigator was deputed by the appellant. It also suggests that he went to the accident spot on 22.12.2007. The reference to the time being 5.05 A.M. relied upon by the learned Counsel for the respondent as the time at which the Investigator, inter alia, is alleged to have reached the spot, is actually part of the information which the Investigator received from the Sub-Inspector. The Sub- Inspector has informed the Investigator that he received information at 5.05 am and, thereafter, he, along with a Constable, had reached the spot and that he saw the car, which was burning. The only part which makes up the Report, as such, of the Investigator, is his observations. Thus, the Investigators Report does not appear to suggest that the Investigator had been to the accident site at 05.00 A.M. in the morning and, therefore, had the opportunity to interact with the driver of the vehicle or ensure that the test was conducted to show that the driver was driving under the influence of alcohol. Thus, we repel the contentions of the respondent.75. On facts, having rejected the argument of the respondent that the surveyor appointed by the appellant was present at the time of the accident or immediately after the accident, we must look at the some of the terms of the insurance policy. The contract provides that the notice shall be given in writing to the insurer immediately after the occurrence of any accidental loss or damage in the event of any claim. The insured has to give all information and assistance as required by the company. It is obviously true that the appellant was intimated on 22.12.2007 which is evident from the fact that investigator did go to the accident spot on 22.12.2007 and inspected the car. The exact time given is however not mentioned in the report. The time at which he went was also not got articulated through the interrogatory issued by the respondent. It would appear to be a case where the driver of the car not having suffered any fresh injury would not have been available in the hospital. The police authorities obviously did not carry out the blood test or the breath test. As to what transpired in this regard the matter remains a mystery. From the F.I.R. it appears that the informant officers priority was to take the men out and to take them to the hospital. However, we cannot resist recording our disquiet at the conduct of the police officer in not pursuing the matter in the form of conducting a breath test or other tests and pursuing the matter under Section 185 of the Motor Vehicles Act or by filing of final report. However we desist from saying anything more having regard to the fact that 14 years have gone by.76. Coming to the question again on burden of proof, insofar as the appellant–insured seeks to establish exclusion of liability is concerned, the burden of proof is upon it, subject to what we hold.77. In the context of question relating to burden of proof, in the case of this nature, we cannot but notice Section 106 of the Evidence Act. Section 106 of the Evidence Act speaks of the burden of proving facts which are in the special knowledge of the person. Section 106 of the Evidence Act reads as follows:106 Burden of proving facts specially within knowledge - when any fact is specially is within knowledge of any person the burden of proving that fact is upon him.78. This Section enshrines the principle which conduces to establishing facts when those facts are especially within the knowledge of a party.There can be no doubt this is a salutary provision which applies to both civil and criminal matters also. We do notice V. Kishan Rao (supra), where this Court held as follows:Before the District Forum, on behalf of Respondent 1, it was argued that the complainant sought to prove Yashoda Hospital record without following the provisions of Sections 61, 64, 74 and 75 of the Evidence Act, 1872. The Forum overruled the objection, and in our view rightly, that complaints before the Consumer Fora are tried summarily and the Evidence Act in terms does not apply. This Court held in Malay Kumar Ganguly v. Dr. Sukumar Mukherjee [(2009) 9 SCC 221 : (2010) 2 SCC (Cri) 299] that provisions of the Evidence Act are not applicable and the Fora under the Act are to follow the principles of natural justice (see para 43, p. 252 of the report).79. Even if, the Section as such is not applicable to the Consumer Protection Act, there can be no reason why the principle cannot apply Act. We may notice a decision of this Court in Shambu Nath Mehra v. State of Ajmer AIR 1956 SC 404 . Paragraph 11 of the said judgment reads as under:11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are especially within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word especially stresses that. It means facts that are pre- eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. Emperor [AIR 1936 PC 169] and Seneviratne v. R. [(1936) 3 All ER 36, 49].80. The same view has been taken in Murlidhar and others v. State of Rajasthan AIR 2005 SC 2345 .The respondent set up the case that the driver had not consumed any alcohol. In the very next sentence, it is pleaded that further assuming that he had consumed alcohol, as he was not intoxicated the exclusion clause is not attracted. When it came to affidavit evidence, however, the driver has not deposed that he had not consumed intoxicating liquor. He has only stated that he was neither under the influence of intoxicating liquor or drugs at the time of the accident. In view of the evidence that pointed to the driver smelling of alcohol and the absence of any evidence by even the driver that he has not consumed alcohol and as even found by the National Commission, it would appear to be clear that the car was driven by the driver after having consumed alcohol. In such a case as to what was the nature of the alcohol and what was the quantity of alcohol consumed, and where he had consumed, it would certainly be facts within the special knowledge of the person who has consumed the alcohol. The driver has not, for instance also, once we proceed on the basis that he has consumed alcohol, indicated when he has consumed the alcohol. It would be disproportionately difficult as laid down by this Court for the insurer in the facts to have been proved as to whether the driver has consumed liquor on an empty stomach or he had food and then consumed alcohol or what was the quantity and quality of the drink (alcohol content) which would have been circumstances relevant to consider as to whether he drove the vehicle under the influence of alcohol. The driver has merely stated that he was not under the influence of intoxicating liquor and he was in his full senses.82. It is true, no doubt, there are no interrogatories served on the driver by the appellant. It must be noted here that this Court has laid down that having regard to the nature of the proceeding under the Consumer Protection Act, the proceeding being summary, cross examination be conducted ordinarily through the modality of interrogatories. In Dr. J.J. Merchant (Dr) v. Shrinath Chaturvedi (2002) 6 SCC 635 19. It is true that it is the discretion of the Commission to examine the experts if required in an appropriate matter. It is equally true that in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time. The Act specifically empowers the Consumer Forums to follow the procedure which may not require more time or delay the proceedings. The only caution required is to follow the said procedure strictly. Under the Act, while trying a complaint, evidence could be taken on affidavits [under Section 13(4)(iii)]. It also empowers such Forums to issue any commission for examination of any witness [under Section 13(4)(v)]. It is also to be stated that Rule 4 in Order 18 CPC is substituted which inter alia provides that in every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. It also provides that witnesses could be examined by the court or the Commissioner appointed by it. As stated above, the Commission is also empowered to follow the said procedure. Hence, we do not think that there is any scope of delay in examination or cross-examination of the witnesses. The affidavits of the experts including the doctors can be taken as evidence. Thereafter, if cross-examination is sought for by the other side and the Commission finds it proper, it can easily evolve a procedure permitting the party who intends to cross-examine by putting certain questions in writing and those questions also could be replied by such experts including doctors on affidavits. In case where stakes are very high and still a party intends to cross- examine such doctors or experts, there can be video conferences or asking questions by arranging telephonic conference and at the initial stage this cost should be borne by the person who claims such video conference. Further, cross- examination can be taken by the Commissioner appointed by it at the working place of such experts at a fixed time.83. Thus, unlike in proceeding in a court, ordinarily the insurers may not be in a position to cross examine. It is no doubt true that since the principle of Section 106 of the Evidence Act only cast the burden on the person who has special knowledge of the facts, apart from the facts, which we have referred to above, viz., where it was consumed, the quality and quantity of alcohol consumed, the time at which it was consumed, whether it was accompanied by food which can clearly be said to be within the knowledge of the person who drove the vehicle, the effects of the drinking by way of signs discernible, after the accident took place, in the facts, cannot be said to be within the knowledge of the driver only. We say this for the reason that according to FIR, the police constable on patrol has purported to describe the happening of the accident and was present at that time. According to his version, he has with the aid of his companion officer helped the driver and the co-passenger out of the vehicle and they were taken to the hospital. At the hospital, in the medical legal report, there is reference to breath of alcohol(+). It is, however, true that the insurer or his agent may not have been given notice at that stage. We also agree that it would not be proper or legal to hold that in such circumstances, the insurer would still be in a position to prove through a having regard to the fact did not suffer any fresh injury is discharged from the hospital and goes away, we find it inconceivable as to how the insurer could be at fault for not having a breath or blood test conducted. It may be true that the insurer could have obtained material in the form of affidavit evidence from the police officer or the medical practitioner concerned regarding any other facts regarding consumption of alcohol by the driver.84. The State Commission has applied the principle of res ipsa loquitur. The question to be answered is not whether the driver of the vehicle was negligent. Res ipsa loquitur has been discussed in the decision of this Court in Syad Akbar v. State of Karnataka (1980) 1 SCC 30 and this is what is held:19. As a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. To emphasise the point, it may be reiterated that in such cases, the event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use due care. But, according to some decisions, satisfaction of this condition alone is not sufficient for res ipsa to come into play and it has to be further satisfied that the event which caused the accident was within the defendants control. The reason for this second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position than the plaintiff to explain how the accident occurred. Instances of such special kind of accidents which tell their own story of being offsprings of negligence, are furnished by cases, such as where a motor vehicle mounts or projects over a pavement and hurts somebody there or travelling in the vehicle; one car ramming another from behind, or even a head-on collision on the wrong side of the road. (See per Lord Normand in Barkway v. South Wales Transport Co. [(1950) 1 All ER 392, 399]; Cream v. Smith [(1961) 8 AER 349]; Richley v. Faull [(1965) 1 WLR 1454 : (1965) 3 All ER 109] )20. Thus, for the application of the maxim res ipsa loquitur no less important a requirement is that the res must not only bespeak negligence, but pin it on the defendant.85. Thus, it is used in cases of tort and where the facts without anything more clearly and unerringly points to negligence. The principle of res ipsa loquitur, as such, appears to be inapposite, when, what is in question, is whether driver was under the influence of alcohol. It may be another matter that though the principle as such is inapplicable, the manner in which the accident occurred may along with other circumstances point to the driver being under the influence of alcohol.The finding that a person can be said to be moderately intoxicated if he has 200 mg per 100 ml is an incorrect inference. The person who has such a level of alcohol would have 0.2% of alcohol. Such a person would clearly be heavily intoxicated. This is clear from a perusal of the table showing the effects in the Manual for Physicians referred to in paragraph 7 of the relied upon order.87. The further finding that a person with a concentration of 0.15% of alcohol in the blood is regarded as fit to drive a motor vehicle and such percentage happens when he has 150 mg of alcohol per 100ml blood is an observation made based on Modis Medical Jurisprudence and drawn upon the presumptive limit which prevailed in the United States. In the United States, at one point of time, 0.15% of alcohol concentration was the maximum presumptive limit. If the alcohol concentration was found to be in excess of 0.15% unless rebutted by the accused, it was presumed that the driver was under the influence of alcohol. In fact, there was a lower presumptive limit of 0.05% and if the concentration was below this limit it was presumed that the driver was not in the wrong. What is relevant is that following various studies the presumptive limit on the one hand stood lowered in all the states and the maximum presumptive limit was initially reduced to 0.10% and thereafter it was reduced to 0.08%. In India the percentage is 0.03 which is the same as 30 mg in 100 ml of blood. In China and in Sweden, the percentage is still lower. It is 0.02%. In paragraph 6 of the relied upon order reference is made to Lyons Medical Jurisprudence and Toxicology. Reference is made therein to the policy statement of the American Medical Association and National Safety Council of the USA that 0.10% can be taken as prima facie evidence of alcoholic intoxication and recognising that many individuals are under the influence of 0.05% to 0.10% range. This is at loggerheads with the earlier reference to 0.15% alcohol not rendering a person unfit to drive the motor vehicle unless it is understood as the law at an earlier point of time. The further reference to 0.05% blood alcohol level raising a presumption that a subject was not under the influence of alcoholic beverage is again based on the set of laws in the United States which provided for such a presumption. The National Commission has not considered the fact that along with such presumptive limit, the laws in the United States also further provide that irrespective of the alcohol percentage or BAC level, if the vehicle is not driven safely and a person has consumed alcohol, he is liable to be booked under another set of laws. The observation made in Lyons Medical Jurisprudence that blood alcohol level of less than 0.10% does not raise a presumption of intoxication is also contrary to the developments under which even the presumptive limit has been reduced to 0.08%. In fact, there is a zero-percentage alcohol level or 0.02% alcohol in most states for the underaged drivers in the United States. Coming to paragraph 7 of the relied upon order, the Commission has referred to the Manual for Physicians in National Drug Dependence Treatment Centre, All India Institute of Medical Sciences, New Delhi.There is in the first-place error in the second classification. Actually, it is intended for a BAC level of above 80. Even in the said classification the actual effects of alcohol consumption are shown as follows – Noisy, moody, impaired judgement, impaired driving ability as against the third classification 100 to 200 BAC, the effects of which are – Electroencephalographic changes begin to appear, Blurred vision, unsteady gait, gross motor in-coordination, slurred speech, aggressive, quarrelsome, talking loudly. The Commission has not referred to the effects of BAC below 80 brought out in the Manual. In the same, the effects are shown as – euphoria, feeling of relaxation and talking freely, clumsy movement of hands and legs, reduced alertness but believes himself to be alert. The relied upon order also shows disinclination to accept views expressed in Modis Medical Jurisprudence and Toxicology on the basis of the opinion of All India Institute of Medical Sciences which is allegedly collaborated by the opinion expressed in Lyons Medical Jurisprudence and Toxicology. The Commission in the said case, which did not deal with a case of driving after consuming liquor, found the limits relevant as fixed in various countries. The quantity of alcohol allowed in the USA is stated to be not above 100 mg in 100 ml of blood. In fact, in the USA where it also used to be 100mg in 100 ml, it has now further been reduced to 0.08% corresponding to 80 mg in 100 ml.88. We also find that the NCDRC was in error in conflating the requirement under Section 185 of the Motor Vehicles Act, with that under the exclusion clause in the contract of insurance in question.89. The Report is based on a statement given by a Police Constable Anand Kumar. His statement would show that as the Constable posted at the Police Station, Tilak Marg, New Delhi, on 21/22.12.2007, he and another Constable were on patrolling. At about 02.25, he on his motorcycle reached c-hexagon, Zakir Hussain Marg. He saw the driver of the car No. DL-1CJ-3577 (the car in question), came from the Nizamuddin side towards the Zakir Hussain Marg, India Gate, in a very rash, negligent way and at a very high speed. Due to very high speed, this car got out of control and hit at a massive force with a footpath of c-hexagon, Dr. Zakir Hussain Marg, Children Park, India Gate, electric pole and the wall of the Children park and got overturned. The car caught fire. He along with his associate, a Home Guard, brought the driver Shri Aman Bangia and his associate out of the said car, after great efforts and reported about the incident to wireless opp. (must be operator) D-56 of Police Station, through wireless. Vehicles of the fire brigade, PCR Van and Additional SHO Van, came to the spot. He reports that the accident occurred due to the rash and negligent driving. FIR shows that the Sub- Inspector, on the basis of the said information, which he recorded, goes to the site of the accident. It is recorded in the FIR further that the Add/SHO and the vehicles of the fire brigade were all so present for controlling the fire. The PCR van, it is stated, had taken away the accused to the Ram Manohar Lohia Hospital. The Sub-Inspector goes to the Hospital. He received the MLC of the driver of the car and the co- passenger. In the same, the Doctors have reported that there is no evidence of fresh injury and smell of alcohol (+). Virtually, the same report is made about both the driver and the co-passenger. The age of the driver is shown as 27 years. It was further recorded that a case under Section 279/427 of the IPC and Section 185 of the MV Act had been committed. The date and time of the occurrence is again shown as 22.12.2007 at about 02.25.90. This FIR is FIR No. 453 of 2007. The proceedings of the Metropolitan Magistrate dated 27.08.2011 would show that for the offence under Section 279 of the IPC the charge was separately framed against the driver of the car and he voluntarily pleaded guilty. He was convicted under Section 279 of IPC and sentenced to pay a fine of Rs.1,000/- with, no doubt, a default clause.91. A perusal of the Order of the State Commission would show that the FIR and the Medico Legal Case sheet has been produced by the respondent itself.92. There can be no doubt that the respondent itself sought to rely on the FIR and the Medico Legal Case (MLC). We have noticed its contents. The FIR has been prepared on the basis of the Report of the Police Officer. The use of the FIR in criminal case is to be distinguished from its employment in a consumer case. This is so, in particular, when the FIR is relied upon by the complainant himself. It is noteworthy further that though in the complaint, it was contended that the Police had lodged the FIR under Section 185 of the Motor Vehicles Act besides Section 279/427 of IPC but no charge-sheet had been filed till the date of the complaint, meaning thereby that the Police, after investigating the case, could not find any evidence to prosecute the driver for any of the offences, it must be noticed that the complaint is of the year 2009 and it seen dated 04.03.2009, the case of the respondent that there was no evidence to prosecute the driver for any of the offences, is falsified by the driver pleading guilty in regard to at least one of the offences, viz., the offence under Section 279 of IPC, which took place, apparently, during the pendency of the complaint before the State Commission and the State Commission has taken notice of this development.93. As far as MLC is concerned, in the complaint filed by the respondent, there is no dispute that the MLC contained reference to the driver and the co-passenger smelling of alcohol.94. At this juncture, it is necessary to notice the case set up by the respondent. It expressly sets up the case that the person driving the vehicle had not consumed any alcohol. The very next sentence, no doubt, sets up the alternate case, which is that further assuming that he had consumed alcohol, the case would not fall under the Exclusion Clause, as he was, in any case, not intoxicated.95. It is further noteworthy that PW1, the Company Secretary of the respondent, has, in is his Affidavit evidence, stated that under Section 185 of the MV Act, a certain percentage of alcohol is to be found before a person is to be prosecuted for the offence of drunken driving. The law does not prohibit driving after consuming liquor and all that is prohibited is, that the percentage of liquor should not exceed 30 mg. per 100 ml. of blood. Therefore, the understanding appears to be that only in circumstances, where the act of driving, having consumed liquor, attracts the wrath of Section 185 and an offence is committed thereunder, that the opprobrium of the Exclusion Clause in the Contract of Insurance, for own damage, is attracted.96. The Affidavit of PW2, the driver himself, would show that he does not depose that he had not consumed liquor as was the case in thecomplaint. Instead, he deposes only that he was neither under the influence ofintoxicating liquor or drugs at the time of the accident. He further deposed that he was in his full senses and capable of exercising proper control over the said vehicle. Even, at the stage of the deposition through affidavit, which appears to have been filed in 2010, he reiterates that the case in FIR No. 453 of 2007, was falsely registered. The case pending against him in the Court of the Metropolitan Magistrate, New Delhi, is stated to be malafide and he is sure to be acquitted in the said case. Nearly, within a year, as already noticed by us, however, the allegedly false case is accepted by the driver as true. The Affidavit of PW2, would not show that the driver had not consumed liquor, which case is set up. On the contrary, driver having drunk, is fortified by the MLC, which clearly indicates that the driver was smelling of alcohol.97. Therefore, it can be safely concluded that the case set up of the respondent that the person driving the car had not consumed liquor, is clearly false.100. The interrogatories, along with the answers, reveal the following:a. The Surveyor of the appellant is a Lawyers Firm.b. The Surveyor has not personally met the driver of the car.c. The observations made by the Surveyor is based on the MLC and FIR.d. The appellant is not aware as to whether the Surveyor had met any Doctor, duringe. The Surveyor has not obtained any medical test report from the Doctor or the Investigating Officer, during his investigation.f. The appellant pleads ignorance as to whether any urine test was conducted on the driver to determine the consumption of the alcohol.g. The same is the answer also in regard toas to whether any blood sample was taken to determine the consumption of alcohol.h. The appellant, in its answer, has stated that it has not filed affidavit of the Doctor, who has stated smell of alcohol in his Report.i. The appellant has also stated that he does not have any Medical Report to show the level of alcohol in the blood.101. We would think that it would not be appropriate to conflate the two situations, viz., the requirement under Section 185 of the MV Act and an Exclusion Clause in the Contract of Insurance in question. The requirements of drunken driving under Section 185 of the MV Act, can be proved only with reference to the presence of the alcohol concentration which is 30 mg per 100 ml of blood. This corresponds to 0.03 per cent BAC. In fact, it is noteworthy that in Sweden and in China, it is 0.02.102. As far as establishing the contention by the insurer in a Clause of the nature, we are dealing with, viz., a case where the insurer alleges that the driver was driving the vehicle under the insurance of alcohol, it is all very well, if there is a criminal case and evidence is obtained therein, which shows that the driver had 30 mg/100 ml or more. Or in other words, if the BAC level was 0.03 or more. We would think that in a case where, there is a blood test of breath test, which indicates that there is no consumption at all, undoubtedly, it would not be open to the insurer to set up the case of exclusion. The decision of this Court in Bachubhai Hassanalli Karyani (supra) was rendered under Section 117 of the Motor Vehicles Act, 1939, prior to its substitution in 1977, and what is more it turned on the evidence also.103. However, in cases, where there is no scientific material, in the form of test results available, as in the case before us, it may not disable the insurer from establishing a case for exclusion. The totality of the circumstances obtaining in a case, must be considered. The scope of the enquiry, in a case under the Consumer Protection Act, which is a summary proceeding, cannot be lost sight of. A consumer, under the Act, can succeed, only on the basis of proved deficiency of service. The deficiency of service would arise only with reference to the terms of the contract and, no doubt, the law which surrounds it. If the deficiency is not established, having regard to the explicit terms of the contract, the consumer must fail.104. It is, in this regard, we would think that an exclusion of the nature involved in this case, must be viewed. We can safely proceed in this case, on the basis that the person driving the vehicle had consumed alcohol. We can proceed on the basis that he drove the car after having consumed alcohol. It is true that the exact quantity, which he had consumed, is not forthcoming. The fact that he smelt of alcohol, is indisputable, having regard to the contents of the FIR and also the MLC. He was accompanied by PW3. PW3 also smelt of alcohol. The incident took place in the early hours of 22.12.2007. It happened at New Delhi. It is further clear that it happened in the close vicinity of India Gate. The driver and the passenger were in their twenties. At that time of the day, viz., the early hours, the version of the parties must be appreciated without reference to any possibility of the accident happening as a result of any sudden incident happening, as for instance, attempted crossing of a person or an animal, out by the FIR. There is simply no such case for the respondent. It is clear that we can safely proceed on the basis that the vehicle was driven in a rash and negligent manner, having regard to the conviction entered under Section 279 of the IPC. This is also to be viewed in the context of the respondent putting up the case that the driver had not consumed alcohol and that the case, even under Section 279 of the IPC was a false case. Still further, if we examine the exact nature of the accident, it speaks eloquently for the influence, which the consumption of alcohol had produced on the driver of the vehicle. The car, which is undoubtedly a Porsche, which we presume, has a very powerful engine and capable of achieving enormous speed, is reported to have gone out of control and hit at a massive force with the footpath of the road. It overturned. It caught fire. In fact, it is the case of the respondent that the car was a complete wreck. It was described as a total loss. The vehicles of the fire brigade came to douse the fire. We are conscious that speed and its impact can be relative to the road, the traffic and the speed limits. The FIR refers to the car being driven very fast. A person can be rash and negligent without having been under the influence of alcohol. At the same time, being under the influence of alcohol can also lead to rash and negligent driving. They are not incompatible.105. This Court would not be remiss, if it takes into account the improbability of any traffic worth the name at the time of the accident. While we may be in agreement with the respondent that it would be for the insurer to make out a case, for pressing the Exclusion Clause, we cannot be oblivious to the fact that there is no material in the pleadings of the respondent or in the evidence tendered for explaining the accident. We can take judicial notice of the fact that the roads in the Capital City, particularly in the area, where the accident occurred, are sufficiently wide and the vehicle dashing against the footpath and turning turtle and catching fire, by itself, does point to, along with the fact that the alcohol which was consumed manifests contemporaneously in the breath of the driver, to conclude that alcohol did play the role, which, unfortunately, it is capable of producing. | 1 | 31,135 | 11,095 | ### Instruction:
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The appellant has also stated that he does not have any Medical Report to show the level of alcohol in the blood. 101. We would think that it would not be appropriate to conflate the two situations, viz., the requirement under Section 185 of the MV Act and an Exclusion Clause in the Contract of Insurance in question. The requirements of drunken driving under Section 185 of the MV Act, can be proved only with reference to the presence of the alcohol concentration which is 30 mg per 100 ml of blood. This corresponds to 0.03 per cent BAC. In fact, it is noteworthy that in Sweden and in China, it is 0.02. 102. As far as establishing the contention by the insurer in a Clause of the nature, we are dealing with, viz., a case where the insurer alleges that the driver was driving the vehicle under the insurance of alcohol, it is all very well, if there is a criminal case and evidence is obtained therein, which shows that the driver had 30 mg/100 ml or more. Or in other words, if the BAC level was 0.03 or more. We would think that in a case where, there is a blood test of breath test, which indicates that there is no consumption at all, undoubtedly, it would not be open to the insurer to set up the case of exclusion. The decision of this Court in Bachubhai Hassanalli Karyani (supra) was rendered under Section 117 of the Motor Vehicles Act, 1939, prior to its substitution in 1977, and what is more it turned on the evidence also. 103. However, in cases, where there is no scientific material, in the form of test results available, as in the case before us, it may not disable the insurer from establishing a case for exclusion. The totality of the circumstances obtaining in a case, must be considered. The scope of the enquiry, in a case under the Consumer Protection Act, which is a summary proceeding, cannot be lost sight of. A consumer, under the Act, can succeed, only on the basis of proved deficiency of service. The deficiency of service would arise only with reference to the terms of the contract and, no doubt, the law which surrounds it. If the deficiency is not established, having regard to the explicit terms of the contract, the consumer must fail. 104. It is, in this regard, we would think that an exclusion of the nature involved in this case, must be viewed. We can safely proceed in this case, on the basis that the person driving the vehicle had consumed alcohol. We can proceed on the basis that he drove the car after having consumed alcohol. It is true that the exact quantity, which he had consumed, is not forthcoming. The fact that he smelt of alcohol, is indisputable, having regard to the contents of the FIR and also the MLC. He was accompanied by PW3. PW3 also smelt of alcohol. The incident took place in the early hours of 22.12.2007. It happened at New Delhi. It is further clear that it happened in the close vicinity of India Gate. The driver and the passenger were in their twenties. At that time of the day, viz., the early hours, the version of the parties must be appreciated without reference to any possibility of the accident happening as a result of any sudden incident happening, as for instance, attempted crossing of a person or an animal, out by the FIR. There is simply no such case for the respondent. It is clear that we can safely proceed on the basis that the vehicle was driven in a rash and negligent manner, having regard to the conviction entered under Section 279 of the IPC. This is also to be viewed in the context of the respondent putting up the case that the driver had not consumed alcohol and that the case, even under Section 279 of the IPC was a false case. Still further, if we examine the exact nature of the accident, it speaks eloquently for the influence, which the consumption of alcohol had produced on the driver of the vehicle. The car, which is undoubtedly a Porsche, which we presume, has a very powerful engine and capable of achieving enormous speed, is reported to have gone out of control and hit at a massive force with the footpath of the road. It overturned. It caught fire. In fact, it is the case of the respondent that the car was a complete wreck. It was described as a total loss. The vehicles of the fire brigade came to douse the fire. We are conscious that speed and its impact can be relative to the road, the traffic and the speed limits. The FIR refers to the car being driven very fast. A person can be rash and negligent without having been under the influence of alcohol. At the same time, being under the influence of alcohol can also lead to rash and negligent driving. They are not incompatible. 105. This Court would not be remiss, if it takes into account the improbability of any traffic worth the name at the time of the accident. While we may be in agreement with the respondent that it would be for the insurer to make out a case, for pressing the Exclusion Clause, we cannot be oblivious to the fact that there is no material in the pleadings of the respondent or in the evidence tendered for explaining the accident. We can take judicial notice of the fact that the roads in the Capital City, particularly in the area, where the accident occurred, are sufficiently wide and the vehicle dashing against the footpath and turning turtle and catching fire, by itself, does point to, along with the fact that the alcohol which was consumed manifests contemporaneously in the breath of the driver, to conclude that alcohol did play the role, which, unfortunately, it is capable of producing.
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of alcohol in his Report.i. The appellant has also stated that he does not have any Medical Report to show the level of alcohol in the blood.101. We would think that it would not be appropriate to conflate the two situations, viz., the requirement under Section 185 of the MV Act and an Exclusion Clause in the Contract of Insurance in question. The requirements of drunken driving under Section 185 of the MV Act, can be proved only with reference to the presence of the alcohol concentration which is 30 mg per 100 ml of blood. This corresponds to 0.03 per cent BAC. In fact, it is noteworthy that in Sweden and in China, it is 0.02.102. As far as establishing the contention by the insurer in a Clause of the nature, we are dealing with, viz., a case where the insurer alleges that the driver was driving the vehicle under the insurance of alcohol, it is all very well, if there is a criminal case and evidence is obtained therein, which shows that the driver had 30 mg/100 ml or more. Or in other words, if the BAC level was 0.03 or more. We would think that in a case where, there is a blood test of breath test, which indicates that there is no consumption at all, undoubtedly, it would not be open to the insurer to set up the case of exclusion. The decision of this Court in Bachubhai Hassanalli Karyani (supra) was rendered under Section 117 of the Motor Vehicles Act, 1939, prior to its substitution in 1977, and what is more it turned on the evidence also.103. However, in cases, where there is no scientific material, in the form of test results available, as in the case before us, it may not disable the insurer from establishing a case for exclusion. The totality of the circumstances obtaining in a case, must be considered. The scope of the enquiry, in a case under the Consumer Protection Act, which is a summary proceeding, cannot be lost sight of. A consumer, under the Act, can succeed, only on the basis of proved deficiency of service. The deficiency of service would arise only with reference to the terms of the contract and, no doubt, the law which surrounds it. If the deficiency is not established, having regard to the explicit terms of the contract, the consumer must fail.104. It is, in this regard, we would think that an exclusion of the nature involved in this case, must be viewed. We can safely proceed in this case, on the basis that the person driving the vehicle had consumed alcohol. We can proceed on the basis that he drove the car after having consumed alcohol. It is true that the exact quantity, which he had consumed, is not forthcoming. The fact that he smelt of alcohol, is indisputable, having regard to the contents of the FIR and also the MLC. He was accompanied by PW3. PW3 also smelt of alcohol. The incident took place in the early hours of 22.12.2007. It happened at New Delhi. It is further clear that it happened in the close vicinity of India Gate. The driver and the passenger were in their twenties. At that time of the day, viz., the early hours, the version of the parties must be appreciated without reference to any possibility of the accident happening as a result of any sudden incident happening, as for instance, attempted crossing of a person or an animal, out by the FIR. There is simply no such case for the respondent. It is clear that we can safely proceed on the basis that the vehicle was driven in a rash and negligent manner, having regard to the conviction entered under Section 279 of the IPC. This is also to be viewed in the context of the respondent putting up the case that the driver had not consumed alcohol and that the case, even under Section 279 of the IPC was a false case. Still further, if we examine the exact nature of the accident, it speaks eloquently for the influence, which the consumption of alcohol had produced on the driver of the vehicle. The car, which is undoubtedly a Porsche, which we presume, has a very powerful engine and capable of achieving enormous speed, is reported to have gone out of control and hit at a massive force with the footpath of the road. It overturned. It caught fire. In fact, it is the case of the respondent that the car was a complete wreck. It was described as a total loss. The vehicles of the fire brigade came to douse the fire. We are conscious that speed and its impact can be relative to the road, the traffic and the speed limits. The FIR refers to the car being driven very fast. A person can be rash and negligent without having been under the influence of alcohol. At the same time, being under the influence of alcohol can also lead to rash and negligent driving. They are not incompatible.105. This Court would not be remiss, if it takes into account the improbability of any traffic worth the name at the time of the accident. While we may be in agreement with the respondent that it would be for the insurer to make out a case, for pressing the Exclusion Clause, we cannot be oblivious to the fact that there is no material in the pleadings of the respondent or in the evidence tendered for explaining the accident. We can take judicial notice of the fact that the roads in the Capital City, particularly in the area, where the accident occurred, are sufficiently wide and the vehicle dashing against the footpath and turning turtle and catching fire, by itself, does point to, along with the fact that the alcohol which was consumed manifests contemporaneously in the breath of the driver, to conclude that alcohol did play the role, which, unfortunately, it is capable of producing.
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Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi | to be true as stated in the various paras of the election petition do not constitute any corrupt practice. The petition was drafted in a highly vague and general manner. Various paras of the petition presented disjointed averments and it is difficult to make out as to what actually the petitioner intended to plead. At the conclusion of hearing of the appeal before us appellant made applications for amending the election petition, to remove the defects pointed out by the High Court and to render the allegations of corrupt practice in accordance with the provisions of S.33 read with S.123 of the Act. Having given our anxious consideration to the amendment applications, we are of the opinion that these applications cannot be allowed at this stage. It must be borne in mind that the election petition was presented to the Registrar of the High Court, at Lucknow Bench on the last day of the limitation prescribed for filing the election petition. The appellant could not raise any ground of challenge after the expiry of limitation. O.IV, Rule 17 no doubt permits amendment of an election petition but the same is subject to the provisions of the Act. S.87 prescribes a period of 45 days from the date of the election for presenting election petition calling in question, the election of a returned candidate. After the expiry of that period no election petition is maintainable and the High Court or this Court has no jurisdiction to extend the period of limitation. An order of amendment permitting a new ground to be raised beyond the time specified in S.81 would amount to contravention of those provisions and beyond the ambit of S.87 of the Act. It necessarily follows chat a new ground cannot be raised or inserted in an election petition by way of amendment after the expiry of the period of limitations. The amendments claimed by the appellant are not in the nature of supplying particulars instead those seek to raise new ground of challenge. Various paras of the election petition which are sought to be amended do not disclose any cause of action, therefore. it is not permissible to allow their amendment after expiry of the period of limitation. Amendment applications are accordingly rejected.32. Before we close we could like to express our anxiety on a feature which of late has assumed great proportion. In Parliamentary form of democracy political parties play vital role and occasionally they sponsor candidates of the election. But under the existing law it is open to any elector to contest election from any parliamentary constituency in the country and it is not necessary that the candidate should be sponsored by a political party. It is permissible for an elector to contest election on his own as an independent candidate. Some independent individuals contest election genuinely and some of them have succeeded also but experience has shown that a large number of independent candidates contest the election for the mere sake of contesting with a view to make out grounds for challenging the election. Presence of a number of independent candidates results in confusion, for the millions of the illiterate and ignorant electors who exercise their electoral right on the basis of symbols printed on the ballot papers. The presence of large number of independent candidates makes the ballot paper of unmanageable size and ordinary elector is confused in the election booth while exercising his franchise. This leads to confusion. In the instant case out of 14 candidates who contested the election 11 of them including the appellant contested as independent candidates and they all polled only paltry number of votes. This shows the genuineness of the candidature of independent candidates. The appellant is a resident of Gwalior in Madhya Pradesh and he is a lawyer by profession. He contested election as an independent candidate and on the date of filing of nomination paper he insisted to file his nomination paper by stripping off himself completely and by putting on only a langot. This caused consternation in the office of the Returning Officer, and it has also been raised as a ground of attack in the election petition. In fact the appellant has filed certain photographs before us showing himself in a langot only. When this appeal came up for hearing before us the appellant insisted that he should be allowed to argue the case by putting on a crown (an artificial one) on his head. According to him without the crown he would not be able to make his submissions in a satisfactory manner. We refused to grant the permission to the great dissatisfaction of the appellant. A Court of law is a solemn place where proceedings are held in a solemn manner and the time of the Court especially in the apex Court is precious time which belongs to the people and it would be wholly obnoxious to judicial propriety to allow a litigant to appear in Court wearing a crown to argue the case. The Court cannot be converted into a dramatic or theatrical stage. We accordingly refused to grant the permission to the appellant to wear his crown. During the arguments the appellant glibly stated that he had contested the election for the offices of President and Vice President and that he would be contesting each and every election as an independent candidate with a view to reform the society and the election law. This is not uncommon as a number of other persons have been contesting elections as independent candidates for the high office and some of them filed election petition disputing the election. These factors have given cause for anxiety to us and we hope that the Parliament will take these matters into consideration to devise ways and means to meet the onslaught of independent candidates who are not quite serious about their business.33. In view of our discussion, we are of the opinion that the High Court rightly exercised its power in rejecting this petition under O.VII. R.11. 34. | 0[ds]it is apparent that those paras of a petition which do not disclose any cause of action, are liable to be struck off under O.VI, R.16, as the Court is empowered at any stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the petition or suit. It is the duty of the court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the court on examination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in striking out the pleadings. O.VI, R.16 itself empowers the Court to strike out pleadings at any stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarrass and delay the proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the court finds that no triable issues remain to be considered, it has power to reject the election petition under. O.VI,election petition runs into 58 paras containing allegations of various corrupt practices known to the law. The averments contained in the various paras are in disjointed form and in order to ascertain true intention of the election petitioner, one has to read several paras and connect the same with the other to ascertain the correct import of the allegations. The allegations contained in paras 1 to 7 contain narration of facts as to when the election took place and the petitioners desire to file his nomination paper by wearing only a "langot" and the obstruction raised by the authorities and the allegation that the police were shadowing the appellant and two of them always kept company to him. These paras do not make out any ground under S.100 of the Act. In para 8, the appellant alleged that on 5th. 6th and 10th June he saw a number of jeeps plying in the Parliamentary Constituency of Amethi bearing flags of Congress (I ) which were being used for electioneering purposes in support of Rajiv Gandhi. The allegations further state that the appellant noticed that food was being given to the workers of Rajiv Gandhi at the kothi of Sanjay Singh at Amethi. Assuming the allegations to be true, these do not make out any case of corrupt practice or any other round of challenge under S.100 of the Act. During the course of arguments the appellant urged that the allegations contained in para 8 indicate that Rajiv Gandhi had been using a large number of vehicles and feeding workers and thereby he had been incurring expenses beyond the permissible limit. This inference is not permissible as each and every corrupt practice must be clearly and specifically pleaded and it should be complete in itself. No corrupt practice can be inferred from reading one sentence here and the other reading sentence here. A corrupt practice as contemplated by S.123(6) contemplates incur ring or authorising expenditure beyond the prescribed limit.Allegations contained in paras 22 to 26 relate to the relationship between the appellant and one Ram Pal Singh whom he had appointed his election agent. These allegations refer to matters which do not make out any ground under S.100 of the Act. In para 27 the appellant stated that he as well as his election agent both were being followed by police but it does not refer to any violation of law or rule or commission of any electoral offence by the returned candidate or his workers with his consent. In para 28 the appellant alleged that on the polling day a lady went to the polling booth along with a person, and the accompanying person affixed stamp on the ballot paper and returned with her. Even if that be so, we fail to understand as to how those facts would amount to any corrupt practice with consent of the returned candidate. Even assuming that this constitutes violation of provision of the Act and the Rules framed thereunder, there is no pleading that it materially affected the result of the election. In fact the difference of votes between the petitioner and the returned candidate was of such great magnitude, that there could be no question of election being materially affected on the basis of the aforesaid incident. In para 29 the appellant stated that on the polling day drinking water and batashas were being distributed to the voters at the polling station in Amethi. There is no allegation that the water and batashas was being distributed with the consent of Rajiv Gandhi or that he spent money over it or that the said action influenced the voters or that it materially affected the result of the election. In the absence of any such allegations para 29 disclosed no cause of action.18. Allegations contained in paras 31 to 35 relate to alleged irregularities committed on the polling day, according to these allegations, workers of the respondent helped voters to cast their vote in favour of the respondent. The averments contained therein do not amount to any corrupt practice, instead if at all these allegations relate to irregularities and illegalities alleged to have been committed on the polling day which would at best be relevant if there was further allegation that it materially affected the result of the election. Since respondents term has already expired, and as his election cannot be set aside, these allegations do not survive a it is not necessary to consider them in detail. Similarly averments contained in paras 37-38 contain narration of facts which have no bearing on any corrupt practice. Allegations contained in paras 39 to 49 relate to the appointment of counting agents. In substance the appellant has alleged that neither he nor his election agent had appointed any counting agents but a number of persons had acted as the appellants counting agents in an unauthorised manner and complaints made by him were not considered and the Returning Officer failed to perform his duty. These allegations even if assumed to be true do not make out any case of commission of corrupt practice.19. Allegations contained in paras 50, 51 and 53 (1)(f) of the election petition purport to state that Rajiv Gandhi and his workers with his consent spent money on the election in excess of the ceiling limit and major port ion of which was not shown by him in his election expenses return. It was alleged that in all Rs. 3,15,500/- had been spent by Rajiv Gandhi in his election but he did not include the same in his return. Details of the expenditure is mentioned in the sub paras (A) to (G) of para DO. In these paras the appellant alleged that Rajiv Gandhi used at least 100 jeeps for thirty days and his workers with his consent used 40 jeeps and spent money on propaganda badges, leaflets, making arrangements for holding meetings for Smt. Indira Gandhi throughout the Amethi constituency and money was spent in providing food to 100 workers of Rajiv Gandhi, in all the returned candidate and his workers with his consent spent a sum of Rs. 3,15,500/- but the same as not accounted for in the election return. The allegations contained in these paras relate to the corrupt practice under S.123(6) of the Act read with S.77. S.123(6) provides that incurring or authorising of expenditure in contravention of S.77 is a corrupt practice. S.77 lays down that every candidate at the election shall keep a correct and separate account of all expenditure in connection with the election incurred or authorised by him or by his election agent between the date of nomination and the date of declaration of result. The account shall contain such particulars as prescribed by Rules. Sub-section (3) lays down that expenditure shall not exceed such amount as may be prescribed. R.90, Conduct of Election Rules, 1961, prescribed that the expenses shall not exceed a sum of Rs. 1 lakh for Lok Sabha election in the State of Uttar Pradesh. S.77 and the Rules therefore prescribed a ceiling limit for election expenses and if any candidate incurs or authorises expenses in excess of the ceiling limit, he would be guilty of corrupt practice under S.123(6) of the Act. The allegations contained in various sub paras of para 50 merely allege that a number of vehicles were plying with Congress (1) flags and food was served in connection with the election meetings, distribution of badges and leaflets. There is, however, no allegation that Rajiv Gandhi incurred or authorised incurring of expenditure for the aforesaid purposes. Any voluntary expense incurred by a political party, well wishers, sympathisers or association of persons does not fall within the mischief of S.123(6) of the Act, instead only that expenditure which is incurred by the candidate himself or authorised by him is material for the purpose of S.77.The aforesaid allegations do not amount to any corrupt practice as contemplated by S.123 of the Act. At best these allegations raise a grievance that the presiding officers did not perform their duties in accordance with law inasmuch as they failed in their duty to remove the posters and other propaganda material from the polling booth and the hand which was the election symbol of Rajiv Gandhi and the same was displayed within 100 meters of the polling booth in violation of the rules. The allegations do not make out any charge of corrupt practice. If at all the allegations could be a ground under S.100(l)(d)(iv) of the Act for setting aside election on the ground of it being materially affected but no such plea was raised. Paras 54 to 58 do not deal with any corrupt practice.31. The above scanning of the election petition would show that the appellant failed to plead complete details of corrupt practice which could constitute a cause of action as contemplated by S.100 of the Act and he further failed to give the material facts and other details of the alleged corrupt practices. The allegations relating to corrupt practice, even if assumed to be true as stated in the various paras of the election petition do not constitute any corrupt practice. The petition was drafted in a highly vague and general manner. Various paras of the petition presented disjointed averments and it is difficult to make out as to what actually the petitioner intended to plead. At the conclusion of hearing of the appeal before us appellant made applications for amending the election petition, to remove the defects pointed out by the High Court and to render the allegations of corrupt practice in accordance with the provisions of S.33 read with S.123 of the Act. Having given our anxious consideration to the amendment applications, we are of the opinion that these applications cannot be allowed at this stage. It must be borne in mind that the election petition was presented to the Registrar of the High Court, at Lucknow Bench on the last day of the limitation prescribed for filing the election petition. The appellant could not raise any ground of challenge after the expiry of limitation. O.IV, Rule 17 no doubt permits amendment of an election petition but the same is subject to the provisions of the Act. S.87 prescribes a period of 45 days from the date of the election for presenting election petition calling in question, the election of a returned candidate. After the expiry of that period no election petition is maintainable and the High Court or this Court has no jurisdiction to extend the period of limitation. An order of amendment permitting a new ground to be raised beyond the time specified in S.81 would amount to contravention of those provisions and beyond the ambit of S.87 of the Act. It necessarily follows chat a new ground cannot be raised or inserted in an election petition by way of amendment after the expiry of the period of limitations. The amendments claimed by the appellant are not in the nature of supplying particulars instead those seek to raise new ground of challenge. Various paras of the election petition which are sought to be amended do not disclose any cause of action, therefore. it is not permissible to allow their amendment after expiry of the period of limitation. Amendment applications are accordingly rejected.32. Before we close we could like to express our anxiety on a feature which of late has assumed great proportion. In Parliamentary form of democracy political parties play vital role and occasionally they sponsor candidates of the election. But under the existing law it is open to any elector to contest election from any parliamentary constituency in the country and it is not necessary that the candidate should be sponsored by a political party. It is permissible for an elector to contest election on his own as an independent candidate. Some independent individuals contest election genuinely and some of them have succeeded also but experience has shown that a large number of independent candidates contest the election for the mere sake of contesting with a view to make out grounds for challenging the election. Presence of a number of independent candidates results in confusion, for the millions of the illiterate and ignorant electors who exercise their electoral right on the basis of symbols printed on the ballot papers. The presence of large number of independent candidates makes the ballot paper of unmanageable size and ordinary elector is confused in the election booth while exercising his franchise. This leads to confusion. In the instant case out of 14 candidates who contested the election 11 of them including the appellant contested as independent candidates and they all polled only paltry number of votes. This shows the genuineness of the candidature of independent candidates. The appellant is a resident of Gwalior in Madhya Pradesh and he is a lawyer by profession. He contested election as an independent candidate and on the date of filing of nomination paper he insisted to file his nomination paper by stripping off himself completely and by putting on only a langot. This caused consternation in the office of the Returning Officer, and it has also been raised as a ground of attack in the election petition. In fact the appellant has filed certain photographs before us showing himself in a langot only. When this appeal came up for hearing before us the appellant insisted that he should be allowed to argue the case by putting on a crown (an artificial one) on his head. According to him without the crown he would not be able to make his submissions in a satisfactory manner. We refused to grant the permission to the great dissatisfaction of the appellant. A Court of law is a solemn place where proceedings are held in a solemn manner and the time of the Court especially in the apex Court is precious time which belongs to the people and it would be wholly obnoxious to judicial propriety to allow a litigant to appear in Court wearing a crown to argue the case. The Court cannot be converted into a dramatic or theatrical stage. We accordingly refused to grant the permission to the appellant to wear his crown. During the arguments the appellant glibly stated that he had contested the election for the offices of President and Vice President and that he would be contesting each and every election as an independent candidate with a view to reform the society and the election law. This is not uncommon as a number of other persons have been contesting elections as independent candidates for the high office and some of them filed election petition disputing the election. These factors have given cause for anxiety to us and we hope that the Parliament will take these matters into consideration to devise ways and means to meet the onslaught of independent candidates who are not quite serious about their business.33. In view of our discussion, we are of the opinion that the High Court rightly exercised its power in rejecting this petition under O.VII. R.11. | 0 | 12,824 | 2,937 | ### 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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to be true as stated in the various paras of the election petition do not constitute any corrupt practice. The petition was drafted in a highly vague and general manner. Various paras of the petition presented disjointed averments and it is difficult to make out as to what actually the petitioner intended to plead. At the conclusion of hearing of the appeal before us appellant made applications for amending the election petition, to remove the defects pointed out by the High Court and to render the allegations of corrupt practice in accordance with the provisions of S.33 read with S.123 of the Act. Having given our anxious consideration to the amendment applications, we are of the opinion that these applications cannot be allowed at this stage. It must be borne in mind that the election petition was presented to the Registrar of the High Court, at Lucknow Bench on the last day of the limitation prescribed for filing the election petition. The appellant could not raise any ground of challenge after the expiry of limitation. O.IV, Rule 17 no doubt permits amendment of an election petition but the same is subject to the provisions of the Act. S.87 prescribes a period of 45 days from the date of the election for presenting election petition calling in question, the election of a returned candidate. After the expiry of that period no election petition is maintainable and the High Court or this Court has no jurisdiction to extend the period of limitation. An order of amendment permitting a new ground to be raised beyond the time specified in S.81 would amount to contravention of those provisions and beyond the ambit of S.87 of the Act. It necessarily follows chat a new ground cannot be raised or inserted in an election petition by way of amendment after the expiry of the period of limitations. The amendments claimed by the appellant are not in the nature of supplying particulars instead those seek to raise new ground of challenge. Various paras of the election petition which are sought to be amended do not disclose any cause of action, therefore. it is not permissible to allow their amendment after expiry of the period of limitation. Amendment applications are accordingly rejected.32. Before we close we could like to express our anxiety on a feature which of late has assumed great proportion. In Parliamentary form of democracy political parties play vital role and occasionally they sponsor candidates of the election. But under the existing law it is open to any elector to contest election from any parliamentary constituency in the country and it is not necessary that the candidate should be sponsored by a political party. It is permissible for an elector to contest election on his own as an independent candidate. Some independent individuals contest election genuinely and some of them have succeeded also but experience has shown that a large number of independent candidates contest the election for the mere sake of contesting with a view to make out grounds for challenging the election. Presence of a number of independent candidates results in confusion, for the millions of the illiterate and ignorant electors who exercise their electoral right on the basis of symbols printed on the ballot papers. The presence of large number of independent candidates makes the ballot paper of unmanageable size and ordinary elector is confused in the election booth while exercising his franchise. This leads to confusion. In the instant case out of 14 candidates who contested the election 11 of them including the appellant contested as independent candidates and they all polled only paltry number of votes. This shows the genuineness of the candidature of independent candidates. The appellant is a resident of Gwalior in Madhya Pradesh and he is a lawyer by profession. He contested election as an independent candidate and on the date of filing of nomination paper he insisted to file his nomination paper by stripping off himself completely and by putting on only a langot. This caused consternation in the office of the Returning Officer, and it has also been raised as a ground of attack in the election petition. In fact the appellant has filed certain photographs before us showing himself in a langot only. When this appeal came up for hearing before us the appellant insisted that he should be allowed to argue the case by putting on a crown (an artificial one) on his head. According to him without the crown he would not be able to make his submissions in a satisfactory manner. We refused to grant the permission to the great dissatisfaction of the appellant. A Court of law is a solemn place where proceedings are held in a solemn manner and the time of the Court especially in the apex Court is precious time which belongs to the people and it would be wholly obnoxious to judicial propriety to allow a litigant to appear in Court wearing a crown to argue the case. The Court cannot be converted into a dramatic or theatrical stage. We accordingly refused to grant the permission to the appellant to wear his crown. During the arguments the appellant glibly stated that he had contested the election for the offices of President and Vice President and that he would be contesting each and every election as an independent candidate with a view to reform the society and the election law. This is not uncommon as a number of other persons have been contesting elections as independent candidates for the high office and some of them filed election petition disputing the election. These factors have given cause for anxiety to us and we hope that the Parliament will take these matters into consideration to devise ways and means to meet the onslaught of independent candidates who are not quite serious about their business.33. In view of our discussion, we are of the opinion that the High Court rightly exercised its power in rejecting this petition under O.VII. R.11. 34.
### Response:
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assumed to be true as stated in the various paras of the election petition do not constitute any corrupt practice. The petition was drafted in a highly vague and general manner. Various paras of the petition presented disjointed averments and it is difficult to make out as to what actually the petitioner intended to plead. At the conclusion of hearing of the appeal before us appellant made applications for amending the election petition, to remove the defects pointed out by the High Court and to render the allegations of corrupt practice in accordance with the provisions of S.33 read with S.123 of the Act. Having given our anxious consideration to the amendment applications, we are of the opinion that these applications cannot be allowed at this stage. It must be borne in mind that the election petition was presented to the Registrar of the High Court, at Lucknow Bench on the last day of the limitation prescribed for filing the election petition. The appellant could not raise any ground of challenge after the expiry of limitation. O.IV, Rule 17 no doubt permits amendment of an election petition but the same is subject to the provisions of the Act. S.87 prescribes a period of 45 days from the date of the election for presenting election petition calling in question, the election of a returned candidate. After the expiry of that period no election petition is maintainable and the High Court or this Court has no jurisdiction to extend the period of limitation. An order of amendment permitting a new ground to be raised beyond the time specified in S.81 would amount to contravention of those provisions and beyond the ambit of S.87 of the Act. It necessarily follows chat a new ground cannot be raised or inserted in an election petition by way of amendment after the expiry of the period of limitations. The amendments claimed by the appellant are not in the nature of supplying particulars instead those seek to raise new ground of challenge. Various paras of the election petition which are sought to be amended do not disclose any cause of action, therefore. it is not permissible to allow their amendment after expiry of the period of limitation. Amendment applications are accordingly rejected.32. Before we close we could like to express our anxiety on a feature which of late has assumed great proportion. In Parliamentary form of democracy political parties play vital role and occasionally they sponsor candidates of the election. But under the existing law it is open to any elector to contest election from any parliamentary constituency in the country and it is not necessary that the candidate should be sponsored by a political party. It is permissible for an elector to contest election on his own as an independent candidate. Some independent individuals contest election genuinely and some of them have succeeded also but experience has shown that a large number of independent candidates contest the election for the mere sake of contesting with a view to make out grounds for challenging the election. Presence of a number of independent candidates results in confusion, for the millions of the illiterate and ignorant electors who exercise their electoral right on the basis of symbols printed on the ballot papers. The presence of large number of independent candidates makes the ballot paper of unmanageable size and ordinary elector is confused in the election booth while exercising his franchise. This leads to confusion. In the instant case out of 14 candidates who contested the election 11 of them including the appellant contested as independent candidates and they all polled only paltry number of votes. This shows the genuineness of the candidature of independent candidates. The appellant is a resident of Gwalior in Madhya Pradesh and he is a lawyer by profession. He contested election as an independent candidate and on the date of filing of nomination paper he insisted to file his nomination paper by stripping off himself completely and by putting on only a langot. This caused consternation in the office of the Returning Officer, and it has also been raised as a ground of attack in the election petition. In fact the appellant has filed certain photographs before us showing himself in a langot only. When this appeal came up for hearing before us the appellant insisted that he should be allowed to argue the case by putting on a crown (an artificial one) on his head. According to him without the crown he would not be able to make his submissions in a satisfactory manner. We refused to grant the permission to the great dissatisfaction of the appellant. A Court of law is a solemn place where proceedings are held in a solemn manner and the time of the Court especially in the apex Court is precious time which belongs to the people and it would be wholly obnoxious to judicial propriety to allow a litigant to appear in Court wearing a crown to argue the case. The Court cannot be converted into a dramatic or theatrical stage. We accordingly refused to grant the permission to the appellant to wear his crown. During the arguments the appellant glibly stated that he had contested the election for the offices of President and Vice President and that he would be contesting each and every election as an independent candidate with a view to reform the society and the election law. This is not uncommon as a number of other persons have been contesting elections as independent candidates for the high office and some of them filed election petition disputing the election. These factors have given cause for anxiety to us and we hope that the Parliament will take these matters into consideration to devise ways and means to meet the onslaught of independent candidates who are not quite serious about their business.33. In view of our discussion, we are of the opinion that the High Court rightly exercised its power in rejecting this petition under O.VII. R.11.
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Maruti Suzuki India Limited Vs. State of Maharashtra & Others | not round off the prices as per Section 18 of the Act read with Rule 2(m) of the Legal Metrology (Packaged Commodities) Rules, 2011. It was informed to the petitioner-company by the notice dated 02.01.2014 that the respondents were prima facie of the view that there was a contravention of the provisions of Section 18 of the Act read with Rule 2(m) of the Legal Metrology (Packaged Commodities) Rules, 2011 and the contravention is compoundable. The petitioner intimated the respondent that it was ready for compounding of the offence by paying the compounding fees.Though there are 12 directors on the board of directors of the petitioner company, the petitioner-company had nominated the Director under Section 49(2) of the Act. The Director of the Legal Metrology had also certified the nomination of Shri Kazahiko Ayabe as the Director under Section 49(2) of the Act. Under Section 49(2) of the Act, when an offence under the Act was committed by the Company, a person, who has been nominated under Section 49(2) and where no such person is nominated, every person who is at the time of the commission of the offence in charge and responsible for the conduct of the business of the company is deemed to be guilty of the offence and is liable to be proceeded against and punished alongwith the company.According to the learned senior counsel for the petitioner-company, since the petitioner-company had nominated the Director, the company expected the Deputy Controller of Legal Metrology to direct the nominated Director and the Company to pay the compounding fees, especially when under Section 49(1) of the Act, only the nominated Director and the Company are deemed to be guilty of the offence and could have been proceeded against and punished. It is stated that admittedly, Shri Kazuhiko Ayabe was nominated under Section 49(2) of the Act and the said nomination was certified by the Director of the Legal Metrology. It is stated that only the nominated Director could have been proceeded against and punished alongiwth the Company and while compounding the offence under Section 48 of the Act, the compounding fees could not have been directed to be paid by the other Directors of the Company. It is stated by referring to the provisions of Section 48(1) of the Act that the compounding of offence is permitted either before or after the institution of the prosecution and if the prosecution could have been instituted only against the nominated Director, there was no question of directing the other Directors to pay the compounding fees while compounding the offence under Section 48 of the Act. The counsel for the respondents supported the orders of the Authorities and submitted that all the directors were liable to pay the compounding fees. It is stated that under the provisions of Section 49(4) of the Act, where an offence is proved to have been committed with the consent or connivance of, or is attributable to the neglect on the part of, any director, manager, secretary or other officer, not being a person nominated under sub-section (2), such director, manager, secretary or other officer shall also be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. The Learned Counsel sought for the dismissal of the writ petition.On hearing the learned counsel for the parties and on a perusal of the provisions of The Legal Metrology Act, 2009, it appears that the Authorities were not justified in directing all the Directors of the petitioner-company to pay the compounding fees, specially when the petitioner-company had nominated the Director under Section 49(2) of the Act. It is rightly submitted on behalf of the petitioner-company that when only the director nominated under Section 49(2) of the Act and the Company could have been proceeded against and punished under Section 49(1) of the Act, there was no propriety in seeking the compounding fees from all the Directors of the petitioner-company,. Under Section 49(1) of the Act, only the nominated Director and the Company is deemed to be guilty of the offence and is liable to be proceeded against and punished. Since, the petitioner-company had nominated the Director under Section 49(2) and since, the nomination was certified by the Director of the Legal Metrology, only the nominated Director and the Company could have been proceeded against and punished. If, the other Directors could not have been proceeded against under Section 49(1) after the nomination of the Director under Section 49(2), the imposition of the compounding charges on the other Directors of the Company was not justified. The Appellate Authority-Deputy Controller of Legal Metrology could not have held that all the Directors of the petitioner-company were liable to pay the compounding fees, as the provisions of Sections 48 and 49 of the Legal Metrology Act, 2009 are distinct and separate. If only the nominated Director of the Company and the Company could have been proceeded against and punished, the other Directors of the Company could not have been directed to pay the compounding fees. The provisions of Section 49(4) of the Act cannot be relied on, for supporting the impugned order, as it is not the case of the respondents that the offence was committed with the consent or connivance of, or is attributable to the neglect on the part of, any director, manager, secretary or other officer, not being a person nominated under sub-section (2) of Section 49 of the Act. In the absence of any allegation in regard to the commission of the offence by any director, manager, secretary or other officer, not being the person nominated under Section 49(2) of the Act, it cannot be said that the compounding charges should have been paid by all the Directors of the Company. Also, if compounding is permissible after the institution of the prosecution and if the prosecution could have been instituted only against the nominated Director, there was no propriety in directing all the Directors of the Company to pay the compounding fees. | 1[ds]On hearing the learned counsel for the parties and on a perusal of the provisions of The Legal Metrology Act, 2009, it appears that the Authorities were not justified in directing all the Directors of theto pay the compounding fees, specially when thehad nominated the Director under Section 49(2) of the Act. It is rightly submitted on behalf of thethat when only the director nominated under Section 49(2) of the Act and the Company could have been proceeded against and punished under Section 49(1) of the Act, there was no propriety in seeking the compounding fees from all the Directors of theUnder Section 49(1) of the Act, only the nominated Director and the Company is deemed to be guilty of the offence and is liable to be proceeded against and punished. Since, thehad nominated the Director under Section 49(2) and since, the nomination was certified by the Director of the Legal Metrology, only the nominated Director and the Company could have been proceeded against and punished. If, the other Directors could not have been proceeded against under Section 49(1) after the nomination of the Director under Section 49(2), the imposition of the compounding charges on the other Directors of the Company was not justified. The AppellateController of Legal Metrology could not have held that all the Directors of thewere liable to pay the compounding fees, as the provisions of Sections 48 and 49 of the Legal Metrology Act, 2009 are distinct and separate. If only the nominated Director of the Company and the Company could have been proceeded against and punished, the other Directors of the Company could not have been directed to pay the compounding fees. The provisions of Section 49(4) of the Act cannot be relied on, for supporting the impugned order, as it is not the case of the respondents that the offence was committed with the consent or connivance of, or is attributable to the neglect on the part of, any director, manager, secretary or other officer, not being a person nominated under(2) of Section 49 of the Act. In the absence of any allegation in regard to the commission of the offence by any director, manager, secretary or other officer, not being the person nominated under Section 49(2) of the Act, it cannot be said that the compounding charges should have been paid by all the Directors of the Company. Also, if compounding is permissible after the institution of the prosecution and if the prosecution could have been instituted only against the nominated Director, there was no propriety in directing all the Directors of the Company to pay the compounding fees. | 1 | 1,296 | 507 | ### 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:
not round off the prices as per Section 18 of the Act read with Rule 2(m) of the Legal Metrology (Packaged Commodities) Rules, 2011. It was informed to the petitioner-company by the notice dated 02.01.2014 that the respondents were prima facie of the view that there was a contravention of the provisions of Section 18 of the Act read with Rule 2(m) of the Legal Metrology (Packaged Commodities) Rules, 2011 and the contravention is compoundable. The petitioner intimated the respondent that it was ready for compounding of the offence by paying the compounding fees.Though there are 12 directors on the board of directors of the petitioner company, the petitioner-company had nominated the Director under Section 49(2) of the Act. The Director of the Legal Metrology had also certified the nomination of Shri Kazahiko Ayabe as the Director under Section 49(2) of the Act. Under Section 49(2) of the Act, when an offence under the Act was committed by the Company, a person, who has been nominated under Section 49(2) and where no such person is nominated, every person who is at the time of the commission of the offence in charge and responsible for the conduct of the business of the company is deemed to be guilty of the offence and is liable to be proceeded against and punished alongwith the company.According to the learned senior counsel for the petitioner-company, since the petitioner-company had nominated the Director, the company expected the Deputy Controller of Legal Metrology to direct the nominated Director and the Company to pay the compounding fees, especially when under Section 49(1) of the Act, only the nominated Director and the Company are deemed to be guilty of the offence and could have been proceeded against and punished. It is stated that admittedly, Shri Kazuhiko Ayabe was nominated under Section 49(2) of the Act and the said nomination was certified by the Director of the Legal Metrology. It is stated that only the nominated Director could have been proceeded against and punished alongiwth the Company and while compounding the offence under Section 48 of the Act, the compounding fees could not have been directed to be paid by the other Directors of the Company. It is stated by referring to the provisions of Section 48(1) of the Act that the compounding of offence is permitted either before or after the institution of the prosecution and if the prosecution could have been instituted only against the nominated Director, there was no question of directing the other Directors to pay the compounding fees while compounding the offence under Section 48 of the Act. The counsel for the respondents supported the orders of the Authorities and submitted that all the directors were liable to pay the compounding fees. It is stated that under the provisions of Section 49(4) of the Act, where an offence is proved to have been committed with the consent or connivance of, or is attributable to the neglect on the part of, any director, manager, secretary or other officer, not being a person nominated under sub-section (2), such director, manager, secretary or other officer shall also be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. The Learned Counsel sought for the dismissal of the writ petition.On hearing the learned counsel for the parties and on a perusal of the provisions of The Legal Metrology Act, 2009, it appears that the Authorities were not justified in directing all the Directors of the petitioner-company to pay the compounding fees, specially when the petitioner-company had nominated the Director under Section 49(2) of the Act. It is rightly submitted on behalf of the petitioner-company that when only the director nominated under Section 49(2) of the Act and the Company could have been proceeded against and punished under Section 49(1) of the Act, there was no propriety in seeking the compounding fees from all the Directors of the petitioner-company,. Under Section 49(1) of the Act, only the nominated Director and the Company is deemed to be guilty of the offence and is liable to be proceeded against and punished. Since, the petitioner-company had nominated the Director under Section 49(2) and since, the nomination was certified by the Director of the Legal Metrology, only the nominated Director and the Company could have been proceeded against and punished. If, the other Directors could not have been proceeded against under Section 49(1) after the nomination of the Director under Section 49(2), the imposition of the compounding charges on the other Directors of the Company was not justified. The Appellate Authority-Deputy Controller of Legal Metrology could not have held that all the Directors of the petitioner-company were liable to pay the compounding fees, as the provisions of Sections 48 and 49 of the Legal Metrology Act, 2009 are distinct and separate. If only the nominated Director of the Company and the Company could have been proceeded against and punished, the other Directors of the Company could not have been directed to pay the compounding fees. The provisions of Section 49(4) of the Act cannot be relied on, for supporting the impugned order, as it is not the case of the respondents that the offence was committed with the consent or connivance of, or is attributable to the neglect on the part of, any director, manager, secretary or other officer, not being a person nominated under sub-section (2) of Section 49 of the Act. In the absence of any allegation in regard to the commission of the offence by any director, manager, secretary or other officer, not being the person nominated under Section 49(2) of the Act, it cannot be said that the compounding charges should have been paid by all the Directors of the Company. Also, if compounding is permissible after the institution of the prosecution and if the prosecution could have been instituted only against the nominated Director, there was no propriety in directing all the Directors of the Company to pay the compounding fees.
### Response:
1
### Explanation:
On hearing the learned counsel for the parties and on a perusal of the provisions of The Legal Metrology Act, 2009, it appears that the Authorities were not justified in directing all the Directors of theto pay the compounding fees, specially when thehad nominated the Director under Section 49(2) of the Act. It is rightly submitted on behalf of thethat when only the director nominated under Section 49(2) of the Act and the Company could have been proceeded against and punished under Section 49(1) of the Act, there was no propriety in seeking the compounding fees from all the Directors of theUnder Section 49(1) of the Act, only the nominated Director and the Company is deemed to be guilty of the offence and is liable to be proceeded against and punished. Since, thehad nominated the Director under Section 49(2) and since, the nomination was certified by the Director of the Legal Metrology, only the nominated Director and the Company could have been proceeded against and punished. If, the other Directors could not have been proceeded against under Section 49(1) after the nomination of the Director under Section 49(2), the imposition of the compounding charges on the other Directors of the Company was not justified. The AppellateController of Legal Metrology could not have held that all the Directors of thewere liable to pay the compounding fees, as the provisions of Sections 48 and 49 of the Legal Metrology Act, 2009 are distinct and separate. If only the nominated Director of the Company and the Company could have been proceeded against and punished, the other Directors of the Company could not have been directed to pay the compounding fees. The provisions of Section 49(4) of the Act cannot be relied on, for supporting the impugned order, as it is not the case of the respondents that the offence was committed with the consent or connivance of, or is attributable to the neglect on the part of, any director, manager, secretary or other officer, not being a person nominated under(2) of Section 49 of the Act. In the absence of any allegation in regard to the commission of the offence by any director, manager, secretary or other officer, not being the person nominated under Section 49(2) of the Act, it cannot be said that the compounding charges should have been paid by all the Directors of the Company. Also, if compounding is permissible after the institution of the prosecution and if the prosecution could have been instituted only against the nominated Director, there was no propriety in directing all the Directors of the Company to pay the compounding fees.
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U.P.Rajya Vidyut Utpadan Board Vs. U.P.Vidyut Mazdoor Sangh | my opinion is that 28 contract labour in temporary plant through contractor M/s. Eastern Engineering Corporation and M/s. Kheroni Constructions Company should be paid the wages at the rate admissible to the workers/labours in permanent plant. This is my decision in respect of application......" 12. As a matter of fact, the present appellants specifically set out the details of works in two water filtration plants thus : "There are two water filtration plants in Anpara Project. One is permanent having the capacity of treating 3 million Gallon water per day (3 M.G.D) or 30 lacs gallon per day and the second is temporary having capacity of treating 3 Million Gallons per day i.e. 3 lacs gallons per day. From permanent treatment plant, water supply is given to the entire permanent colony. This plant is very important and permanent. Therefore, I.T.I. passed/trained operators are being appointed by the department to run it. The appointments are being made by the Selection Committee through selection procedure on the basis of eligibility and advertisement by the Board. Therefore, the operators and employees appointed on this plant are permanent employees of the department and they are fully responsible for the work done by them. The equipments installed at this plant are of permanent nature and it is being run 24 hours (day and night). There are 6 pumps at this plant and each has the capacity of 170 H.P. and consumes 9302.40 watts electricity. The chemicals are mixed at this plant mechanically and for its operation eligible and responsible employees are required. The salary of these employees comes in the payscale of permanent employees who have been appointed. There are 26 employees have been appointed and working in this plant. The other filtration plant is of temporary nature and is being operated till the next phase of the project is completed and after the completion of next phase it will be closed. From this plant water is supplied to the temporary colony and project area. It is being operated through contractor. The Department makes the payment to the contractor on the basis of itemwise as per the work executed and not labour wise. The contractor used to make payment to his employees on the basis of minimum wages declared by the Government from time to time and not less than that amount. The contractor get this plant operated by his 3 unskilled and 3 semi-skilled employees. The basic pay of the regularly operated appointed by the Board are water filtration plant is as follows : Operators--Basic Pay Rs. 1200 D.A.2572 Local compensatory Allowances 180. Interim Relief 340. Total 4292 per month. Labourers : Basic Pay Rs. 900 D.A. 1931 Local compensatory Allowance Rs. 120 Interim Relief Rs. 300 Total Rs. 3251 per month The contractors used to pay to his semi-skilled employees Rs. 1857.87 per month and to unskilled employees Rs. 1580.23 per month which are declared by Labour Department to the employees in temporary filtration plant. Its photocopy is enclosed. The above facts show that it will not be justiciable to compare the work and facilities of the employees working in permanent filtration plant with the employees working in Temporary Filtration Plant." 13. Despite such a specific case set up by the present appellants before the Labour Commissioner to show that the contract labour in filtration plant engaged through the contractors do not perform the same or similar kind of work as is done by the employees employed directly by the employer in main plant, the Labour Commissioner did not advert to these aspects at all. The Labour Commissioner ought to have adverted to the nature of duties of the staff in the two categories, degree of skill and dimensions of the job for reaching the conclusion that the work done by the contract labour in the second filtration plant is same or similar to the kind of work done by the employees employed by the principal employer directly in the main plant. There is no discussion at all by the Labour Commissioner as to how he arrived at the conclusion about similarity of work. The evidence let in by the parties and the material placed by them seem to have not at all been considered by the Labour Commissioner. 14. The order of Single Judge is no better. He has simply not considered any thing. Insofar as Division Bench is concerned, although, the judgment runs in nine foolscap typed pages but out of that, eight pages relate to maintainability of appeal. In one paragraph, on merits, the Division Bench said thus : "........,we are of the considered view that the judgment of the learned Single Judge does not commend itself for interference on merits. The learned Single Judge has committed no illegality in maintaining the order passed by the Labour Commissioner holding that the workmen on whose behalf application under the proviso to rule 25(2)(v)(a) of the U.P. Rules was filed, though employed by the Contractor, were performing the same or similar kind of work as the workmen directly employed by the appellant and therefore, the wage rates and other conditions of service of the workmen of the contractor shall be the same as applicable to the workmen directly employed by the appellants on the same or similar kind of works." 15. We are afraid, the consideration of the question as to whether the workmen employed by the contractors in the second filtration plant perform the same or similar kind of work as the employees directly employed by the principal employer in the main plant by the Labour Commissioner as well as High Court is highly unsatisfactory. In a situation such as this, we are constrained to set aside the impugned judgment of the High Court as well as the order dated October 24, 1998 passed by the Labour Commissioner, Uttar Pradesh. The application made by the Union under Rule 25(2)(v)(a) of the Rules, 1975 is restored to the file of Labour Commissioner, Kanpur, Uttar Pradesh for fresh consideration in accordance with law. | 1[ds]15. We are afraid, the consideration of the question as to whether the workmen employed by the contractors in the second filtration plant perform the same or similar kind of work as the employees directly employed by the principal employer in the main plant by the Labour Commissioner as well as High Court is highly unsatisfactory. In a situation such as this, we are constrained to set aside the impugned judgment of the High Court as well as the order dated October 24, 1998 passed by the Labour Commissioner, Uttar Pradesh. The application made by the Union under Rule 25(2)(v)(a) of the Rules, 1975 is restored to the file of Labour Commissioner, Kanpur, Uttar Pradesh for fresh consideration in accordance with law | 1 | 2,459 | 145 | ### 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:
my opinion is that 28 contract labour in temporary plant through contractor M/s. Eastern Engineering Corporation and M/s. Kheroni Constructions Company should be paid the wages at the rate admissible to the workers/labours in permanent plant. This is my decision in respect of application......" 12. As a matter of fact, the present appellants specifically set out the details of works in two water filtration plants thus : "There are two water filtration plants in Anpara Project. One is permanent having the capacity of treating 3 million Gallon water per day (3 M.G.D) or 30 lacs gallon per day and the second is temporary having capacity of treating 3 Million Gallons per day i.e. 3 lacs gallons per day. From permanent treatment plant, water supply is given to the entire permanent colony. This plant is very important and permanent. Therefore, I.T.I. passed/trained operators are being appointed by the department to run it. The appointments are being made by the Selection Committee through selection procedure on the basis of eligibility and advertisement by the Board. Therefore, the operators and employees appointed on this plant are permanent employees of the department and they are fully responsible for the work done by them. The equipments installed at this plant are of permanent nature and it is being run 24 hours (day and night). There are 6 pumps at this plant and each has the capacity of 170 H.P. and consumes 9302.40 watts electricity. The chemicals are mixed at this plant mechanically and for its operation eligible and responsible employees are required. The salary of these employees comes in the payscale of permanent employees who have been appointed. There are 26 employees have been appointed and working in this plant. The other filtration plant is of temporary nature and is being operated till the next phase of the project is completed and after the completion of next phase it will be closed. From this plant water is supplied to the temporary colony and project area. It is being operated through contractor. The Department makes the payment to the contractor on the basis of itemwise as per the work executed and not labour wise. The contractor used to make payment to his employees on the basis of minimum wages declared by the Government from time to time and not less than that amount. The contractor get this plant operated by his 3 unskilled and 3 semi-skilled employees. The basic pay of the regularly operated appointed by the Board are water filtration plant is as follows : Operators--Basic Pay Rs. 1200 D.A.2572 Local compensatory Allowances 180. Interim Relief 340. Total 4292 per month. Labourers : Basic Pay Rs. 900 D.A. 1931 Local compensatory Allowance Rs. 120 Interim Relief Rs. 300 Total Rs. 3251 per month The contractors used to pay to his semi-skilled employees Rs. 1857.87 per month and to unskilled employees Rs. 1580.23 per month which are declared by Labour Department to the employees in temporary filtration plant. Its photocopy is enclosed. The above facts show that it will not be justiciable to compare the work and facilities of the employees working in permanent filtration plant with the employees working in Temporary Filtration Plant." 13. Despite such a specific case set up by the present appellants before the Labour Commissioner to show that the contract labour in filtration plant engaged through the contractors do not perform the same or similar kind of work as is done by the employees employed directly by the employer in main plant, the Labour Commissioner did not advert to these aspects at all. The Labour Commissioner ought to have adverted to the nature of duties of the staff in the two categories, degree of skill and dimensions of the job for reaching the conclusion that the work done by the contract labour in the second filtration plant is same or similar to the kind of work done by the employees employed by the principal employer directly in the main plant. There is no discussion at all by the Labour Commissioner as to how he arrived at the conclusion about similarity of work. The evidence let in by the parties and the material placed by them seem to have not at all been considered by the Labour Commissioner. 14. The order of Single Judge is no better. He has simply not considered any thing. Insofar as Division Bench is concerned, although, the judgment runs in nine foolscap typed pages but out of that, eight pages relate to maintainability of appeal. In one paragraph, on merits, the Division Bench said thus : "........,we are of the considered view that the judgment of the learned Single Judge does not commend itself for interference on merits. The learned Single Judge has committed no illegality in maintaining the order passed by the Labour Commissioner holding that the workmen on whose behalf application under the proviso to rule 25(2)(v)(a) of the U.P. Rules was filed, though employed by the Contractor, were performing the same or similar kind of work as the workmen directly employed by the appellant and therefore, the wage rates and other conditions of service of the workmen of the contractor shall be the same as applicable to the workmen directly employed by the appellants on the same or similar kind of works." 15. We are afraid, the consideration of the question as to whether the workmen employed by the contractors in the second filtration plant perform the same or similar kind of work as the employees directly employed by the principal employer in the main plant by the Labour Commissioner as well as High Court is highly unsatisfactory. In a situation such as this, we are constrained to set aside the impugned judgment of the High Court as well as the order dated October 24, 1998 passed by the Labour Commissioner, Uttar Pradesh. The application made by the Union under Rule 25(2)(v)(a) of the Rules, 1975 is restored to the file of Labour Commissioner, Kanpur, Uttar Pradesh for fresh consideration in accordance with law.
### Response:
1
### Explanation:
15. We are afraid, the consideration of the question as to whether the workmen employed by the contractors in the second filtration plant perform the same or similar kind of work as the employees directly employed by the principal employer in the main plant by the Labour Commissioner as well as High Court is highly unsatisfactory. In a situation such as this, we are constrained to set aside the impugned judgment of the High Court as well as the order dated October 24, 1998 passed by the Labour Commissioner, Uttar Pradesh. The application made by the Union under Rule 25(2)(v)(a) of the Rules, 1975 is restored to the file of Labour Commissioner, Kanpur, Uttar Pradesh for fresh consideration in accordance with law
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Hameed Kunju Vs. Nazim | of interference by the High Court in its supervisory jurisdiction under Article 227 in any of the four orders. The reasons are not far to seek.35. It is not in dispute that the respondent was aware of the eviction proceedings because he had been contesting the proceedings since inception at every stage in the Trial Court and then in appeals. It is also not in dispute that it was at his instance, the appellate Court had remanded the case to the Trial Court by order dated 28.01.2014 and fixed the date for the parties to appear before the Trial Court. It is also not in dispute that though the respondent knew the date (28.02.2014) of his appearance before the Trial Court, yet he failed to appear on 28.02.2014 and all subsequent dates despite second service of notice of the proceedings.36. In these circumstances, in our considered view, the Trial Court was fully justified in passing the eviction order on merits on 31.07.2014 against the respondent. Once the final order had been passed, the remedy of the respondent lies in filing appeal against such order to the appellate Court or apply for its setting aside under Order 9 Rule 13 of the Code. The respondent did not do so within the time prescribed for the reasons best known to him.37. In our considered opinion, this is not a case where the respondent could be held to be unaware of the eviction proceedings pending or/and decided against him nor it was a case holding that he was never afforded any opportunity to contest the eviction proceedings.38. On the other hand, we have no hesitation in forming an opinion that the respondent was contesting the eviction proceedings as a "professional litigant" and was successful to a large extent in keeping the proceedings pending for ten years which enabled him to enjoy possession of the suit shop to the detriment of appellants interest.39. In our considered opinion, no one prevented the respondent from appearing before the Trial Court after the remand and contest the proceedings on merits. Despite the knowledge of the proceedings and the date fixed by the appellate Court at his instance, if the respondent did not appear in the Trial Court and failed to contest the eviction proceedings, he has to blame himself and none. If for one or other reason, he could not appear on 28.02.2014, no one prevented him to appear on subsequent dates of hearing and show good or sufficient cause for his absence on the previous date of hearing.40. Apart from what is held above and disagreeing with the view of the High Court which persuaded the High Court to again remand the case, we are of the considered opinion that the appellant had ensured compliance of the order of the earlier appellate Court by paying the cost of Rs. 4000/- to the respondents counsel and Rs. 2000/- to the legal services. Indeed, the very fact that the appellant had stated in his counter affidavit duly supported by an affidavit of his advocate (pages 51-52 of SLP counter affidavit Para 5), there was no reason for the High Court to have doubted the sworn testimony of the appellant and his advocate on this issue. It should have been accepted by the High Court for want of anything said by the respondent in rebuttal except denying.41. In the light of what we have held above, there was, in our view, neither any basis nor any justifiable reason for the High Court to have directed holding of any factual inquiry into the question of payment of cost. The directions to hold an inquiry on this issue is, therefore, wholly illegal and uncalled for.42. We are also of the considered opinion that the applications filed by the respondent for setting aside of the eviction orders dated 31.07.2014, 19.03.2015 and 26.03.2015 and application for condonation of delay in filing such applications and lastly, an application filed for giving redelivery of suit shop were in the nature of abusing the process of the Court and were liable to be dismissed which unfortunately the High Court failed to do so and went on to entertain such applications.43. We also find that while issuing impugned directions, the High Court again exceeded its supervisory jurisdiction under Article 227 when it went to the extent of issuing direction to the Trial Court to "allow" the applications IA Nos. 789 and 790 of 2015 filed by the respondent.44. In so doing, the High Court failed to see that the High Court curtailed the judicial powers of the Trial Court in passing appropriate order on such applications. The High Court had no jurisdiction to issue directions to the Trial Court to pass a particular order by either allowing the application or rejecting it. All that the High Court could do in such case was to remand the case and leave the Trial Court to pass appropriate orders on the application(s) in exercise of its judicial discretion.45. Be that as it may, once we hold that the impugned order is without jurisdiction, the same deserves to be set aside.46. Learned counsel for the respondent (tenant) while supporting the impugned order argued some points but in the light of our findings recorded supra the points urged by learned counsel for the respondent has not substance. We, therefore, do not consider it necessary to deal with them in detail.47. Before parting, we consider it apposite to observe that the object of the Rent Laws all over the State is to ensure speedy disposal of eviction cases between the landlord and tenant and especially those cases where the landlord seek eviction for his bona fide need.48. We sincerely feel that the eviction matters should be given priority in their disposal at all stages of litigation and especially where the eviction is claimed on the ground of bona fide need of the landlord. We hope and trust that due attention would be paid by all courts to ensure speedy disposal of eviction cases. | 1[ds]24. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal, set aside the impugned order and dismiss the writ petition filed by the respondent out of which this appeal arises.In our considered opinion, the detailed facts mentioned supra would clearly reveal that the High Court not only erred in entertaining the respondents writ petition but also erred in exercising its supervisory jurisdiction by interfering in the orders impugned therein.27. In our considered view, there was no case made out on facts or/and in law by the respondent for entertaining his writ petition and interfere in the orders impugned therein.28. In the first instance itself, the High Court, in our view, should have dismissed the writ petition in limine on the ground that since all the 4 orders impugned in the writ petition were amenable to their challenge before the appellate authority, the writ petition was not the proper remedy without first filing the appeal and get the same decided by the appellate Court on its merit in accordance with law. In other words, the High Court should have declined to entertain the writ petition under Article 227 on the ground of availability of an alternative remedy of appeal to the respondent. Indeed the respondent had actually filed appeal in the first round of litigation against the orders of the Trial Court.29. There was, therefore, no reason much less justifiable one for the High Court to have entertained the writ under Article 227 against as many as four orders passed by the Trial Court/ executing Court.30. In any case, in our considered view, the executing Court having seized of the applications filed by the respondent, there was no justification on the part of the High Court to have entertained the writ petition and decided them like an original court. All that the High Court, in such circumstances, could do was to request the executing Court to dispose of the pending applications (IAs) filed by the respondent on their respective merits leaving the parties to challenge the orders once passed on such applications by filing appeal, before the appellate authorities. It was, however, not done.The High Court should have appreciated the undisputed fact that the eviction decree had stood executed and possession was already delivered to the appellant of all the suit shops including the shop in possession of the respondent in accordance with provisions of Order 21 Rule 35 of the Code. It should also have been appreciated that seven tenants had not pursued their case against the same eviction decree and allowed the appellant to obtain possession of the suit shops. Whereas it was only the respondent who had raised the frivolous pleas against such action in these proceedings.33. In our considered view, once the possession had been delivered and decree was recorded as satisfied in accordance with law, the litigation had come to an end leaving no lis pending. In these circumstances, in the absence of any prima facie case having been made out on any jurisdictional issue affecting the very jurisdiction of the Court in passing the eviction decree, the High Court should have declined to examine the legality of four orders impugned therein.34. Apart from what is held supra, we are of the considered opinion that there was absolutely no case made out by the respondent on the merits calling any kind of interference by the High Court in its supervisory jurisdiction under Article 227 in any of the four orders. The reasons are not far to seek.In these circumstances, in our considered view, the Trial Court was fully justified in passing the eviction order on merits on 31.07.2014 against the respondent. Once the final order had been passed, the remedy of the respondent lies in filing appeal against such order to the appellate Court or apply for its setting aside under Order 9 Rule 13 of the Code. The respondent did not do so within the time prescribed for the reasons best known to him.37. In our considered opinion, this is not a case where the respondent could be held to be unaware of the eviction proceedings pending or/and decided against him nor it was a case holding that he was never afforded any opportunity to contest the eviction proceedings.38. On the other hand, we have no hesitation in forming an opinion that the respondent was contesting the eviction proceedings as a "professional litigant" and was successful to a large extent in keeping the proceedings pending for ten years which enabled him to enjoy possession of the suit shop to the detriment of appellants interest.39. In our considered opinion, no one prevented the respondent from appearing before the Trial Court after the remand and contest the proceedings on merits. Despite the knowledge of the proceedings and the date fixed by the appellate Court at his instance, if the respondent did not appear in the Trial Court and failed to contest the eviction proceedings, he has to blame himself and none. If for one or other reason, he could not appear on 28.02.2014, no one prevented him to appear on subsequent dates of hearing and show good or sufficient cause for his absence on the previous date of hearing.40. Apart from what is held above and disagreeing with the view of the High Court which persuaded the High Court to again remand the case, we are of the considered opinion that the appellant had ensured compliance of the order of the earlier appellate Court by paying the cost of Rs. 4000/to the respondents counsel and Rs. 2000/to the legal services. Indeed, the very fact that the appellant had stated in his counter affidavit duly supported by an affidavit of his advocate (pagesof SLP counter affidavit Para 5), there was no reason for the High Court to have doubted the sworn testimony of the appellant and his advocate on this issue. It should have been accepted by the High Court for want of anything said by the respondent in rebuttal except denying.41. In the light of what we have held above, there was, in our view, neither any basis nor any justifiable reason for the High Court to have directed holding of any factual inquiry into the question of payment of cost. The directions to hold an inquiry on this issue is, therefore, wholly illegal and uncalled for.42. We are also of the considered opinion that the applications filed by the respondent for setting aside of the eviction orders dated 31.07.2014, 19.03.2015 and 26.03.2015 and application for condonation of delay in filing such applications and lastly, an application filed for giving redelivery of suit shop were in the nature of abusing the process of the Court and were liable to be dismissed which unfortunately the High Court failed to do so and went on to entertain such applications.43. We also find that while issuing impugned directions, the High Court again exceeded its supervisory jurisdiction under Article 227 when it went to the extent of issuing direction to the Trial Court to "allow" the applications IA Nos. 789 and 790 of 2015 filed by the respondent.44. In so doing, the High Court failed to see that the High Court curtailed the judicial powers of the Trial Court in passing appropriate order on such applications. The High Court had no jurisdiction to issue directions to the Trial Court to pass a particular order by either allowing the application or rejecting it. All that the High Court could do in such case was to remand the case and leave the Trial Court to pass appropriate orders on the application(s) in exercise of its judicial discretion.45. Be that as it may, once we hold that the impugned order is without jurisdiction, the same deserves to be settherefore, do not consider it necessary to deal with them in detail.47. Before parting, we consider it apposite to observe that the object of the Rent Laws all over the State is to ensure speedy disposal of eviction cases between the landlord and tenant and especially those cases where the landlord seek eviction for his bona fide need.48. We sincerely feel that the eviction matters should be given priority in their disposal at all stages of litigation and especially where the eviction is claimed on the ground of bona fide need of the landlord. We hope and trust that due attention would be paid by all courts to ensure speedy disposal of eviction cases. | 1 | 3,963 | 1,518 | ### 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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of interference by the High Court in its supervisory jurisdiction under Article 227 in any of the four orders. The reasons are not far to seek.35. It is not in dispute that the respondent was aware of the eviction proceedings because he had been contesting the proceedings since inception at every stage in the Trial Court and then in appeals. It is also not in dispute that it was at his instance, the appellate Court had remanded the case to the Trial Court by order dated 28.01.2014 and fixed the date for the parties to appear before the Trial Court. It is also not in dispute that though the respondent knew the date (28.02.2014) of his appearance before the Trial Court, yet he failed to appear on 28.02.2014 and all subsequent dates despite second service of notice of the proceedings.36. In these circumstances, in our considered view, the Trial Court was fully justified in passing the eviction order on merits on 31.07.2014 against the respondent. Once the final order had been passed, the remedy of the respondent lies in filing appeal against such order to the appellate Court or apply for its setting aside under Order 9 Rule 13 of the Code. The respondent did not do so within the time prescribed for the reasons best known to him.37. In our considered opinion, this is not a case where the respondent could be held to be unaware of the eviction proceedings pending or/and decided against him nor it was a case holding that he was never afforded any opportunity to contest the eviction proceedings.38. On the other hand, we have no hesitation in forming an opinion that the respondent was contesting the eviction proceedings as a "professional litigant" and was successful to a large extent in keeping the proceedings pending for ten years which enabled him to enjoy possession of the suit shop to the detriment of appellants interest.39. In our considered opinion, no one prevented the respondent from appearing before the Trial Court after the remand and contest the proceedings on merits. Despite the knowledge of the proceedings and the date fixed by the appellate Court at his instance, if the respondent did not appear in the Trial Court and failed to contest the eviction proceedings, he has to blame himself and none. If for one or other reason, he could not appear on 28.02.2014, no one prevented him to appear on subsequent dates of hearing and show good or sufficient cause for his absence on the previous date of hearing.40. Apart from what is held above and disagreeing with the view of the High Court which persuaded the High Court to again remand the case, we are of the considered opinion that the appellant had ensured compliance of the order of the earlier appellate Court by paying the cost of Rs. 4000/- to the respondents counsel and Rs. 2000/- to the legal services. Indeed, the very fact that the appellant had stated in his counter affidavit duly supported by an affidavit of his advocate (pages 51-52 of SLP counter affidavit Para 5), there was no reason for the High Court to have doubted the sworn testimony of the appellant and his advocate on this issue. It should have been accepted by the High Court for want of anything said by the respondent in rebuttal except denying.41. In the light of what we have held above, there was, in our view, neither any basis nor any justifiable reason for the High Court to have directed holding of any factual inquiry into the question of payment of cost. The directions to hold an inquiry on this issue is, therefore, wholly illegal and uncalled for.42. We are also of the considered opinion that the applications filed by the respondent for setting aside of the eviction orders dated 31.07.2014, 19.03.2015 and 26.03.2015 and application for condonation of delay in filing such applications and lastly, an application filed for giving redelivery of suit shop were in the nature of abusing the process of the Court and were liable to be dismissed which unfortunately the High Court failed to do so and went on to entertain such applications.43. We also find that while issuing impugned directions, the High Court again exceeded its supervisory jurisdiction under Article 227 when it went to the extent of issuing direction to the Trial Court to "allow" the applications IA Nos. 789 and 790 of 2015 filed by the respondent.44. In so doing, the High Court failed to see that the High Court curtailed the judicial powers of the Trial Court in passing appropriate order on such applications. The High Court had no jurisdiction to issue directions to the Trial Court to pass a particular order by either allowing the application or rejecting it. All that the High Court could do in such case was to remand the case and leave the Trial Court to pass appropriate orders on the application(s) in exercise of its judicial discretion.45. Be that as it may, once we hold that the impugned order is without jurisdiction, the same deserves to be set aside.46. Learned counsel for the respondent (tenant) while supporting the impugned order argued some points but in the light of our findings recorded supra the points urged by learned counsel for the respondent has not substance. We, therefore, do not consider it necessary to deal with them in detail.47. Before parting, we consider it apposite to observe that the object of the Rent Laws all over the State is to ensure speedy disposal of eviction cases between the landlord and tenant and especially those cases where the landlord seek eviction for his bona fide need.48. We sincerely feel that the eviction matters should be given priority in their disposal at all stages of litigation and especially where the eviction is claimed on the ground of bona fide need of the landlord. We hope and trust that due attention would be paid by all courts to ensure speedy disposal of eviction cases.
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of the Code. It should also have been appreciated that seven tenants had not pursued their case against the same eviction decree and allowed the appellant to obtain possession of the suit shops. Whereas it was only the respondent who had raised the frivolous pleas against such action in these proceedings.33. In our considered view, once the possession had been delivered and decree was recorded as satisfied in accordance with law, the litigation had come to an end leaving no lis pending. In these circumstances, in the absence of any prima facie case having been made out on any jurisdictional issue affecting the very jurisdiction of the Court in passing the eviction decree, the High Court should have declined to examine the legality of four orders impugned therein.34. Apart from what is held supra, we are of the considered opinion that there was absolutely no case made out by the respondent on the merits calling any kind of interference by the High Court in its supervisory jurisdiction under Article 227 in any of the four orders. The reasons are not far to seek.In these circumstances, in our considered view, the Trial Court was fully justified in passing the eviction order on merits on 31.07.2014 against the respondent. Once the final order had been passed, the remedy of the respondent lies in filing appeal against such order to the appellate Court or apply for its setting aside under Order 9 Rule 13 of the Code. The respondent did not do so within the time prescribed for the reasons best known to him.37. In our considered opinion, this is not a case where the respondent could be held to be unaware of the eviction proceedings pending or/and decided against him nor it was a case holding that he was never afforded any opportunity to contest the eviction proceedings.38. On the other hand, we have no hesitation in forming an opinion that the respondent was contesting the eviction proceedings as a "professional litigant" and was successful to a large extent in keeping the proceedings pending for ten years which enabled him to enjoy possession of the suit shop to the detriment of appellants interest.39. In our considered opinion, no one prevented the respondent from appearing before the Trial Court after the remand and contest the proceedings on merits. Despite the knowledge of the proceedings and the date fixed by the appellate Court at his instance, if the respondent did not appear in the Trial Court and failed to contest the eviction proceedings, he has to blame himself and none. If for one or other reason, he could not appear on 28.02.2014, no one prevented him to appear on subsequent dates of hearing and show good or sufficient cause for his absence on the previous date of hearing.40. Apart from what is held above and disagreeing with the view of the High Court which persuaded the High Court to again remand the case, we are of the considered opinion that the appellant had ensured compliance of the order of the earlier appellate Court by paying the cost of Rs. 4000/to the respondents counsel and Rs. 2000/to the legal services. Indeed, the very fact that the appellant had stated in his counter affidavit duly supported by an affidavit of his advocate (pagesof SLP counter affidavit Para 5), there was no reason for the High Court to have doubted the sworn testimony of the appellant and his advocate on this issue. It should have been accepted by the High Court for want of anything said by the respondent in rebuttal except denying.41. In the light of what we have held above, there was, in our view, neither any basis nor any justifiable reason for the High Court to have directed holding of any factual inquiry into the question of payment of cost. The directions to hold an inquiry on this issue is, therefore, wholly illegal and uncalled for.42. We are also of the considered opinion that the applications filed by the respondent for setting aside of the eviction orders dated 31.07.2014, 19.03.2015 and 26.03.2015 and application for condonation of delay in filing such applications and lastly, an application filed for giving redelivery of suit shop were in the nature of abusing the process of the Court and were liable to be dismissed which unfortunately the High Court failed to do so and went on to entertain such applications.43. We also find that while issuing impugned directions, the High Court again exceeded its supervisory jurisdiction under Article 227 when it went to the extent of issuing direction to the Trial Court to "allow" the applications IA Nos. 789 and 790 of 2015 filed by the respondent.44. In so doing, the High Court failed to see that the High Court curtailed the judicial powers of the Trial Court in passing appropriate order on such applications. The High Court had no jurisdiction to issue directions to the Trial Court to pass a particular order by either allowing the application or rejecting it. All that the High Court could do in such case was to remand the case and leave the Trial Court to pass appropriate orders on the application(s) in exercise of its judicial discretion.45. Be that as it may, once we hold that the impugned order is without jurisdiction, the same deserves to be settherefore, do not consider it necessary to deal with them in detail.47. Before parting, we consider it apposite to observe that the object of the Rent Laws all over the State is to ensure speedy disposal of eviction cases between the landlord and tenant and especially those cases where the landlord seek eviction for his bona fide need.48. We sincerely feel that the eviction matters should be given priority in their disposal at all stages of litigation and especially where the eviction is claimed on the ground of bona fide need of the landlord. We hope and trust that due attention would be paid by all courts to ensure speedy disposal of eviction cases.
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Sheo Shankar Singh Vs. State Of Jharkhand | outlined in Section 354(3) viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through laws instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed." 56. In Machhi Singh and Ors. v. State of Punjab (1983) 3 SCC 470 this Court followed the guidelines flowing from Bachan Singhs case (supra) and held that death sentence could be imposed only in the rarest of rare cases when the collective conscience of the community is so shocked that it would expect the holders of judicial power to inflict the death penalty irrespective of their personal opinion as regards the desirability or otherwise of retaining death penalty as a sentencing option. This Court enumerated the following circumstances in which such a sentiment could be entertained by the community: "(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. (2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-à-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland. (3) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of "bride burning" or "dowry deaths" or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. (4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (5) When the victim of murder is an innocent child or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community" 57. In Farooq alias Karattaa Farooq and Ors. v. State of Kerala (2002) 4 SCC 697 this Court was dealing with a case where the appellant was alleged to have thrown a bomb on an under-trial prisoner at the jail gate resulting his death and severe injuries to others. Relying upon the decision of this Court in Bachan Singh case and in the case of Machhi Singh (supra) this Court held that the extreme penalty of death was not called for and accordingly commuted the sentence to life imprisonment. 58. In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498 this Court once again reviewed the case law on the subject and reiterated that although judicial principle of imposition of death penalty were far from being uniform the basic principle that life imprisonment is the rule and death penalty an exception, would call for examination of each case to determine the appropriateness of punishment bearing in mind that death sentence is awarded only in rarest of rare cases where reform is not possible. The discretion given to the Court in such cases assumes importance and its exercise rendered extremely difficult because of the irrevocable character of that penalty. The Court held where two views are possible imposition of death sentence would not be appropriate, but where there is no other option and where reform was not possible death sentence may be imposed. Applying the principles evolved in Bachan Singh case and in the case of Machhi Singh (supra) this Court commuted the death sentence awarded to one of the appellants to life imprisonment holding that the case did not satisfy the "rarest of rare" test to warrant the award of death sentence, even when the decapitation of the victims body and its disposal was termed brutal. 59. State of Maharashtra v. Prakash Sakha Vasave and Ors. (2009) 11 SCC 193 too was a case where this Court while setting aside the acquittal of the accused awarded life imprisonment to him. That was a case where the accused was alleged to have hit the deceased with an axe with such great force that the axe got struck into the head of the deceased and the handle of the axe was also broken. 60. Coming to the case at hand we are of the opinion that the High Court was not justified in imposing the extreme penalty of death upon the appellants. We say so for reasons more than one. Firstly, because the appellants are not professional killers. Even according to the prosecution they were only a part of the coal mafia active in the region indulging in theft of coal from the collieries. The deceased being opposed to such activities appears to have incurred their wrath and got killed. Secondly, because even when the deceased was a politician there was no political angle to his killing. Thirdly, because while all culpable homicides amounting to murder are inhuman, hence legally and ethically unacceptable yet there was nothing particularly brutal, grotesque, diabolical, revolting or dastardly in the manner of its execution so as to arouse intense and extreme indignation of the community or exhaust depravity and meanness on the part of the assailants to call for the extreme penalty. Fourthly, because there was difference of opinion on the question of sentence to be awarded to the convicts. The Trial Court did not find it to be a rarest of rare case and remained content with the award of life sentence only which sentence the High Court enhanced to death. Considering all these circumstances, the death sentence awarded to the appellants in our opinion deserves to be commuted to life imprisonment. | 1[ds]60. Coming to the case at hand we are of the opinion that the High Court was not justified in imposing the extreme penalty of death upon the appellants. We say so for reasons more than one. Firstly, because the appellants are not professional killers. Even according to the prosecution they were only a part of the coal mafia active in the region indulging in theft of coal from the collieries. The deceased being opposed to such activities appears to have incurred their wrath and got killed. Secondly, because even when the deceased was a politician there was no political angle to his killing. Thirdly, because while all culpable homicides amounting to murder are inhuman, hence legally and ethically unacceptable yet there was nothing particularly brutal, grotesque, diabolical, revolting or dastardly in the manner of its execution so as to arouse intense and extreme indignation of the community or exhaust depravity and meanness on the part of the assailants to call for the extreme penalty. Fourthly, because there was difference of opinion on the question of sentence to be awarded to the convicts. The Trial Court did not find it to be a rarest of rare case and remained content with the award of life sentence only which sentence the High Court enhanced to death. Considering all these circumstances, the death sentence awarded to the appellants in our opinion deserves to be commuted to life imprisonment | 1 | 12,929 | 259 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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outlined in Section 354(3) viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through laws instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed." 56. In Machhi Singh and Ors. v. State of Punjab (1983) 3 SCC 470 this Court followed the guidelines flowing from Bachan Singhs case (supra) and held that death sentence could be imposed only in the rarest of rare cases when the collective conscience of the community is so shocked that it would expect the holders of judicial power to inflict the death penalty irrespective of their personal opinion as regards the desirability or otherwise of retaining death penalty as a sentencing option. This Court enumerated the following circumstances in which such a sentiment could be entertained by the community: "(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. (2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-à-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland. (3) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of "bride burning" or "dowry deaths" or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. (4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (5) When the victim of murder is an innocent child or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community" 57. In Farooq alias Karattaa Farooq and Ors. v. State of Kerala (2002) 4 SCC 697 this Court was dealing with a case where the appellant was alleged to have thrown a bomb on an under-trial prisoner at the jail gate resulting his death and severe injuries to others. Relying upon the decision of this Court in Bachan Singh case and in the case of Machhi Singh (supra) this Court held that the extreme penalty of death was not called for and accordingly commuted the sentence to life imprisonment. 58. In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498 this Court once again reviewed the case law on the subject and reiterated that although judicial principle of imposition of death penalty were far from being uniform the basic principle that life imprisonment is the rule and death penalty an exception, would call for examination of each case to determine the appropriateness of punishment bearing in mind that death sentence is awarded only in rarest of rare cases where reform is not possible. The discretion given to the Court in such cases assumes importance and its exercise rendered extremely difficult because of the irrevocable character of that penalty. The Court held where two views are possible imposition of death sentence would not be appropriate, but where there is no other option and where reform was not possible death sentence may be imposed. Applying the principles evolved in Bachan Singh case and in the case of Machhi Singh (supra) this Court commuted the death sentence awarded to one of the appellants to life imprisonment holding that the case did not satisfy the "rarest of rare" test to warrant the award of death sentence, even when the decapitation of the victims body and its disposal was termed brutal. 59. State of Maharashtra v. Prakash Sakha Vasave and Ors. (2009) 11 SCC 193 too was a case where this Court while setting aside the acquittal of the accused awarded life imprisonment to him. That was a case where the accused was alleged to have hit the deceased with an axe with such great force that the axe got struck into the head of the deceased and the handle of the axe was also broken. 60. Coming to the case at hand we are of the opinion that the High Court was not justified in imposing the extreme penalty of death upon the appellants. We say so for reasons more than one. Firstly, because the appellants are not professional killers. Even according to the prosecution they were only a part of the coal mafia active in the region indulging in theft of coal from the collieries. The deceased being opposed to such activities appears to have incurred their wrath and got killed. Secondly, because even when the deceased was a politician there was no political angle to his killing. Thirdly, because while all culpable homicides amounting to murder are inhuman, hence legally and ethically unacceptable yet there was nothing particularly brutal, grotesque, diabolical, revolting or dastardly in the manner of its execution so as to arouse intense and extreme indignation of the community or exhaust depravity and meanness on the part of the assailants to call for the extreme penalty. Fourthly, because there was difference of opinion on the question of sentence to be awarded to the convicts. The Trial Court did not find it to be a rarest of rare case and remained content with the award of life sentence only which sentence the High Court enhanced to death. Considering all these circumstances, the death sentence awarded to the appellants in our opinion deserves to be commuted to life imprisonment.
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1
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60. Coming to the case at hand we are of the opinion that the High Court was not justified in imposing the extreme penalty of death upon the appellants. We say so for reasons more than one. Firstly, because the appellants are not professional killers. Even according to the prosecution they were only a part of the coal mafia active in the region indulging in theft of coal from the collieries. The deceased being opposed to such activities appears to have incurred their wrath and got killed. Secondly, because even when the deceased was a politician there was no political angle to his killing. Thirdly, because while all culpable homicides amounting to murder are inhuman, hence legally and ethically unacceptable yet there was nothing particularly brutal, grotesque, diabolical, revolting or dastardly in the manner of its execution so as to arouse intense and extreme indignation of the community or exhaust depravity and meanness on the part of the assailants to call for the extreme penalty. Fourthly, because there was difference of opinion on the question of sentence to be awarded to the convicts. The Trial Court did not find it to be a rarest of rare case and remained content with the award of life sentence only which sentence the High Court enhanced to death. Considering all these circumstances, the death sentence awarded to the appellants in our opinion deserves to be commuted to life imprisonment
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O. Konavalov Vs. Commander, Coast Guard Region | as a fundamental right to every individual under the Constitution. 27. Judicial Review and Court craft in environmental adjudications, apart from open and shut cases in the traditional law of nuisance is basically a practice of forging fellowship and a mutuality of concern extended to strangers in nature and in ones own community. There will thus be no excluded categories of State Policy or Practice which can claim exemption from judicial consideration. A vivid illustration of how morality informs the subjects presentation of their disputes and the Kings morality in resolving them is given in the story of a fanciful meeting between Alexander the Great, and the legendary King Katzya, ruler of a fabulous land beyond the dark mountain: 28. The visiting Alexander bypassed Katzyas gold and silver but wished to see your customs, your behaviour, and how you administer justice. The conqueror then watched King Katzya heard a case between the buyer and the seller of a field in which hidden treasure had been found. Each disclaimed the treasure, not having bargained for it in the sale. After hearing their briefs, the king found that one man had a son and other a daughter. He arranged their betrothal to one another and bestowed the trove on them. Alexander, laughing, was asked how he would have ruled on such a case in his own land. I would have executed both of them and confiscated the treasure". So King Katzya set out a meal all of gold. When Alexander objected that he did not eat gold, the King exclaimed, with an imprecation: "Why then do you love it so?" He then asked whether the sun shone and the rain fell in Alexanders country and whether there were livestock there. On hearing that there were, he exclaimed, again with an imprecation, "Why then it is only by the desert of those cattle that you survive. 29. Judicial Review would therefore have to be the ever sustaining appreciation of the desert of all beings in nature and all orders of nature to the possibility of human life and the need to avoid at any cost the high probabilities of not only the extinction of the species but destruction of the rich and wonderful variety of Natures productions. In other words it is more urgent to see judicial review as one of the most immediate means of generating concern for life beyond us and orders sustaining us, in the minds of people wielding economic and social power. CONCLUSION: 30. In our opinion, the appellant and other crewmembers are entitled to a fair and just treatment and the confiscation of the ship shall not be treated as a prized catch of an enemy Ship deserving condemnation without exception. The case on hand does not present features of clear and demonstrated complicity of the crew. The comity of nations is a reciprocal courtesy which one member of the family of nations owes to the others. In our opinion, the crewmembers are not responsible for the confiscation and sale of the ship and the cargo. It is settled law that action of the State has to be based on reasonableness and it cannot deprive the basic human rights afforded under the Constitution of India more so under Article 21. 31. In our view, the impugned judgment is contrary to the principles of law laid down by this Court in M.V.Al Quamars and M.V. Elizabeths Cases (supra). In these cases, this Court has held that Maritime lien is a right which continues even if the ship is taken legally from an owner by requisition. The argument advanced by learned counsel for the first respondent that the Maritime lien is extinguished by confiscation has no force and is without any merit. The Courts have recognized and upheld the welfare of the citizens and have always recognized the rights of those who are in the lowest strata of the society especially when it comes to workers and their wages. The seamen have suffered a lot without wages from May, 1999 till the time they were deported by the Consulate. They have suffered a lot of mental and physical agony in spite of that they have not been given their wages till date due to a narrow approach. State should always be fair and reasonable in settling the lawful claims. It is seen from the counter affidavit filed by the Customs Department that the ship was sold for Rs.2.36 Crores through tender sale and the Cargo was sold off by customs through auction and a sum of Rs.18.75 Crores was realised. The seamen can claim their wages only from and out of the sale proceeds of the vessel. 32. This Court in various judgments beginning from R.C.Coopers case and Maneka Gandhis case etc. have laid down that deprivation of rights is subject to judicial review. The State action is restrained by principles of reasonableness, justice and fair play. The principles enshrined in Article 21 are equally applicable to a foreigner as it is to a citizen. The confiscation by the Government of the vessel cannot extinguish the pre-existing rights of the crewmen. India has become a signatory to various International Conventions honouring the social, political, civil, economic rights of human beings. The Directive Principles of State Policy has also become fundamental right and justifiable. The Merchant Shipping Act, 1958 has laid down exhaustive provisions for seamens wages. The Act itself recognizes that recovery of wages shall not be subject to attachment. Section 445 of the Act provides that payment of wages of Seamen can be made by sale of ship. In the Companies Act, under Section 529(a) an overriding effect has been given and it has been provided that in winding up proceedings the workers dues have priority over other claims. The Madras High Court has failed to appreciate that India has travelled very far from 1950 and that the Courts have given way to a dynamic constructive approach in the aspect of social justice while referring to International Conventions etc.33. | 1[ds]In our opinion, the appellant and other crewmembers are entitled to a fair and just treatment and the confiscation of the ship shall not be treated as a prized catch of an enemy Ship deserving condemnation without exception. The case on hand does not present features of clear and demonstrated complicity of the crew. The comity of nations is a reciprocal courtesy which one member of the family of nations owes to the others. In our opinion, the crewmembers are not responsible for the confiscation and sale of the ship and the cargo. It is settled law that action of the State has to be based on reasonableness and it cannot deprive the basic human rights afforded under the Constitution of India more so under Articleour view, the impugned judgment is contrary to the principles of law laid down by this Court in M.V.Al Quamars and M.V. Elizabeths Cases (supra). In these cases, this Court has held that Maritime lien is a right which continues even if the ship is taken legally from an owner by requisition. The argument advanced by learned counsel for the first respondent that the Maritime lien is extinguished by confiscation has no force and is without any merit. The Courts have recognized and upheld the welfare of the citizens and have always recognized the rights of those who are in the lowest strata of the society especially when it comes to workers and their wages. The seamen have suffered a lot without wages from May, 1999 till the time they were deported by the Consulate. They have suffered a lot of mental and physical agony in spite of that they have not been given their wages till date due to a narrow approach. State should always be fair and reasonable in settling the lawful claims. It is seen from the counter affidavit filed by the Customs Department that the ship was sold for Rs.2.36 Crores through tender sale and the Cargo was sold off by customs through auction and a sum of Rs.18.75 Crores was realised. The seamen can claim their wages only from and out of the sale proceeds of theCourt in various judgments beginning from R.C.Coopers case and Maneka Gandhis case etc. have laid down that deprivation of rights is subject to judicial review. The State action is restrained by principles of reasonableness, justice and fair play. The principles enshrined in Article 21 are equally applicable to a foreigner as it is to a citizen. The confiscation by the Government of the vessel cannot extinguish the pre-existing rights of the crewmen. India has become a signatory to various International Conventions honouring the social, political, civil, economic rights of human beings. The Directive Principles of State Policy has also become fundamental right and justifiable. The Merchant Shipping Act, 1958 has laid down exhaustive provisions for seamens wages. The Act itself recognizes that recovery of wages shall not be subject to attachment. Section 445 of the Act provides that payment of wages of Seamen can be made by sale of ship. In the Companies Act, under Section 529(a) an overriding effect has been given and it has been provided that in winding up proceedings the workers dues have priority over other claims. The Madras High Court has failed to appreciate that India has travelled very far from 1950 and that the Courts have given way to a dynamic constructive approach in the aspect of social justice while referring to International Conventions etc. | 1 | 8,908 | 624 | ### 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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as a fundamental right to every individual under the Constitution. 27. Judicial Review and Court craft in environmental adjudications, apart from open and shut cases in the traditional law of nuisance is basically a practice of forging fellowship and a mutuality of concern extended to strangers in nature and in ones own community. There will thus be no excluded categories of State Policy or Practice which can claim exemption from judicial consideration. A vivid illustration of how morality informs the subjects presentation of their disputes and the Kings morality in resolving them is given in the story of a fanciful meeting between Alexander the Great, and the legendary King Katzya, ruler of a fabulous land beyond the dark mountain: 28. The visiting Alexander bypassed Katzyas gold and silver but wished to see your customs, your behaviour, and how you administer justice. The conqueror then watched King Katzya heard a case between the buyer and the seller of a field in which hidden treasure had been found. Each disclaimed the treasure, not having bargained for it in the sale. After hearing their briefs, the king found that one man had a son and other a daughter. He arranged their betrothal to one another and bestowed the trove on them. Alexander, laughing, was asked how he would have ruled on such a case in his own land. I would have executed both of them and confiscated the treasure". So King Katzya set out a meal all of gold. When Alexander objected that he did not eat gold, the King exclaimed, with an imprecation: "Why then do you love it so?" He then asked whether the sun shone and the rain fell in Alexanders country and whether there were livestock there. On hearing that there were, he exclaimed, again with an imprecation, "Why then it is only by the desert of those cattle that you survive. 29. Judicial Review would therefore have to be the ever sustaining appreciation of the desert of all beings in nature and all orders of nature to the possibility of human life and the need to avoid at any cost the high probabilities of not only the extinction of the species but destruction of the rich and wonderful variety of Natures productions. In other words it is more urgent to see judicial review as one of the most immediate means of generating concern for life beyond us and orders sustaining us, in the minds of people wielding economic and social power. CONCLUSION: 30. In our opinion, the appellant and other crewmembers are entitled to a fair and just treatment and the confiscation of the ship shall not be treated as a prized catch of an enemy Ship deserving condemnation without exception. The case on hand does not present features of clear and demonstrated complicity of the crew. The comity of nations is a reciprocal courtesy which one member of the family of nations owes to the others. In our opinion, the crewmembers are not responsible for the confiscation and sale of the ship and the cargo. It is settled law that action of the State has to be based on reasonableness and it cannot deprive the basic human rights afforded under the Constitution of India more so under Article 21. 31. In our view, the impugned judgment is contrary to the principles of law laid down by this Court in M.V.Al Quamars and M.V. Elizabeths Cases (supra). In these cases, this Court has held that Maritime lien is a right which continues even if the ship is taken legally from an owner by requisition. The argument advanced by learned counsel for the first respondent that the Maritime lien is extinguished by confiscation has no force and is without any merit. The Courts have recognized and upheld the welfare of the citizens and have always recognized the rights of those who are in the lowest strata of the society especially when it comes to workers and their wages. The seamen have suffered a lot without wages from May, 1999 till the time they were deported by the Consulate. They have suffered a lot of mental and physical agony in spite of that they have not been given their wages till date due to a narrow approach. State should always be fair and reasonable in settling the lawful claims. It is seen from the counter affidavit filed by the Customs Department that the ship was sold for Rs.2.36 Crores through tender sale and the Cargo was sold off by customs through auction and a sum of Rs.18.75 Crores was realised. The seamen can claim their wages only from and out of the sale proceeds of the vessel. 32. This Court in various judgments beginning from R.C.Coopers case and Maneka Gandhis case etc. have laid down that deprivation of rights is subject to judicial review. The State action is restrained by principles of reasonableness, justice and fair play. The principles enshrined in Article 21 are equally applicable to a foreigner as it is to a citizen. The confiscation by the Government of the vessel cannot extinguish the pre-existing rights of the crewmen. India has become a signatory to various International Conventions honouring the social, political, civil, economic rights of human beings. The Directive Principles of State Policy has also become fundamental right and justifiable. The Merchant Shipping Act, 1958 has laid down exhaustive provisions for seamens wages. The Act itself recognizes that recovery of wages shall not be subject to attachment. Section 445 of the Act provides that payment of wages of Seamen can be made by sale of ship. In the Companies Act, under Section 529(a) an overriding effect has been given and it has been provided that in winding up proceedings the workers dues have priority over other claims. The Madras High Court has failed to appreciate that India has travelled very far from 1950 and that the Courts have given way to a dynamic constructive approach in the aspect of social justice while referring to International Conventions etc.33.
### Response:
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### Explanation:
In our opinion, the appellant and other crewmembers are entitled to a fair and just treatment and the confiscation of the ship shall not be treated as a prized catch of an enemy Ship deserving condemnation without exception. The case on hand does not present features of clear and demonstrated complicity of the crew. The comity of nations is a reciprocal courtesy which one member of the family of nations owes to the others. In our opinion, the crewmembers are not responsible for the confiscation and sale of the ship and the cargo. It is settled law that action of the State has to be based on reasonableness and it cannot deprive the basic human rights afforded under the Constitution of India more so under Articleour view, the impugned judgment is contrary to the principles of law laid down by this Court in M.V.Al Quamars and M.V. Elizabeths Cases (supra). In these cases, this Court has held that Maritime lien is a right which continues even if the ship is taken legally from an owner by requisition. The argument advanced by learned counsel for the first respondent that the Maritime lien is extinguished by confiscation has no force and is without any merit. The Courts have recognized and upheld the welfare of the citizens and have always recognized the rights of those who are in the lowest strata of the society especially when it comes to workers and their wages. The seamen have suffered a lot without wages from May, 1999 till the time they were deported by the Consulate. They have suffered a lot of mental and physical agony in spite of that they have not been given their wages till date due to a narrow approach. State should always be fair and reasonable in settling the lawful claims. It is seen from the counter affidavit filed by the Customs Department that the ship was sold for Rs.2.36 Crores through tender sale and the Cargo was sold off by customs through auction and a sum of Rs.18.75 Crores was realised. The seamen can claim their wages only from and out of the sale proceeds of theCourt in various judgments beginning from R.C.Coopers case and Maneka Gandhis case etc. have laid down that deprivation of rights is subject to judicial review. The State action is restrained by principles of reasonableness, justice and fair play. The principles enshrined in Article 21 are equally applicable to a foreigner as it is to a citizen. The confiscation by the Government of the vessel cannot extinguish the pre-existing rights of the crewmen. India has become a signatory to various International Conventions honouring the social, political, civil, economic rights of human beings. The Directive Principles of State Policy has also become fundamental right and justifiable. The Merchant Shipping Act, 1958 has laid down exhaustive provisions for seamens wages. The Act itself recognizes that recovery of wages shall not be subject to attachment. Section 445 of the Act provides that payment of wages of Seamen can be made by sale of ship. In the Companies Act, under Section 529(a) an overriding effect has been given and it has been provided that in winding up proceedings the workers dues have priority over other claims. The Madras High Court has failed to appreciate that India has travelled very far from 1950 and that the Courts have given way to a dynamic constructive approach in the aspect of social justice while referring to International Conventions etc.
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Collector Of Customs & Excise,Cochin & Ors Vs. A. S. Bava | the appeals as the notification dated May 4. 1963, was bad in so far as it applied S. 129 of the Customs Act. In these circumstances it was not necessary for the petitioner to have filed revisions.5. There is equally no force in the second point. If the petitioner had not applied for dispensation of the deposit of the duty, the appellants would have contended that the petitions under Art. 226 were not maintainable. Moreover, as already stated, the petitions raised a question of jurisdiction.6. To appreciate the third point, it is necessary to extract the relevant statutory provisions. Section 12 of the Excise Act authorises the Central Government to apply provisions of the Sea Customs Act, 1878, now replaced by the Customs Act, 1962, in the following terms:"12. The Central Government may, by notification in the Official Gazette, declare that any of the provisions of the Sea Customs Act, 1878, relating to the levy of and exemption from customs duties, drawback of duty, warehousing, offences and penalties, confiscation, and procedure relating to offences and appeals shall, with such modifications and alterations as it may consider necessary or desirable to adapt them to the circumstances, be applicable in regard to like matters in respect of the duties imposed by S. 3."7. The relevant part of the impugned notification, dated May 4. 1963, reads as follows :"In exercise of the powers conferred by S. 12 of the Central Excises and Salt Act, 1944 (1 of 1944)..............the Central Government declares that the provisions of..... S. 129 of the Customs Act, 1962, relating to matters specified herein shall be applicable in regard to like matters in respect of the duties imposed by S. 3 of the first mentioned Act......."Section 129 of the Customs Act reads thus:"129. (1) Where the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of customs authorities or any penalty levied under this Act, any person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty demanded or the penalty levied :Provided that where in any particular case the appellate authority is of opinion that the deposit of duty demanded or penalty levied will cause undue hardship to the appellant, it may in its discretion dispense with such deposit, either unconditionally or subject to such conditions as it may deem fit.(2) If upon any such appeal it is decided that the whole or any portion of such duty or penalty was not leviable, the proper officer shall return to the appellant such amount of duty or penalty as was not leviable."8. It will be noticed that S. 129 requires an appellant to deposit the duty or penalty levied pending an appeal. In other words, before an appeal can be heard the appellant must deposit the duty or penalty levied. But under S. 35 of the Excise Act, a person aggrieved by any decision or order has an unfettered right to appeal.The question that arises in these appeals is whether the provisions of S. 129 of the Customs Act can be said to be provisions relating to procedure ............relating to appeals within S. 12 of the Excise Act.9. As we have already said, the appeals are filed under S. 35 of the Excise Act. Section 129 of the Customs Act debars the hearing of them unless the duty or penalty is paid. This, it seems to us, is not procedure relating to appeals. This Court in Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh, AIR 1953 SC 221 = 1963 - 4 STC 114 , had to consider a similar provision in S. 22 of the Central Provinces and Berar Sales Tax Act, 1947. Section 22 (1), as originally enacted, read thus:"22. (1) Any dealer aggrieved by an order under this Act may, in the prescribed manner appeal to the prescribed authority against the order:Provided that no appeal against an order of assessment, with or without penalty, shall be entertained by the said authority unless it is satisfied that such amount of tax or penalty or both as the appellant may admit to be due from him, has been paid." It was amended thus:"22. (1) Any dealer aggrieved by an order under this Act may, in the prescribed manner, appeal to the prescribed authority against the order:Provided that no appeal against an order of assessment, with or without penalty shall be admitted by the said authority unless such appeal is accompanied by a satisfactory proof of the payment of the tax, with penalty, if any, in respect of which the appeal has been preferred."10. S.R. Das, J., as he then was, repelled the argument of the learned Advocate that the the requirement as to the deposit of the amount of the assessed tax does not affect the right of appeal itself, which still remains intact, but only introduces a new matter of procedure, and observed :"There can be no doubt that the new requirement "touches" the substantive right "of appeal vested in the appellant. Nor can it be overlooked that such a requirement is calculated to interfere with or fetter, if not to impair or imperil, the substantive right. The right that the amended section gives is certainly less than the right which was available before. A provision which is calculated to deprive the appellant of the unfettered right of appeal cannot be regarded as a mere alteration in procedure. Indeed the new requirement cannot be said merely to regulate the exercise of the appellants pre-existing right but in truth whittles down the right itself and cannot be regarded as a mere rule of procedure."11. These observations are fully applicable in the present case. Section 35 of the Excise Act gave a right of appeal, but S. 129 of the Customs Act whittles down the substantive right of appeal and accordingly it cannot be regarded as procedure relating to appeals within S. 12 of the Excise Act. | 0[ds]4. There is no force in the first point. First, the point was not taken in the High Court. Secondly, it is settled that the existence of a remedy by way of revision does not bar the jurisdiction of the High Court to entertain a petition under Art. 226. Moreover, the petitioner had alleged that the Collector had no jurisdiction to demand the deposit or duty pending the appeals as the notification dated May 4. 1963, was bad in so far as it applied S. 129 of the Customs Act. In these circumstances it was not necessary for the petitioner to have filed revisions.5. There is equally no force in the second point. If the petitioner had not applied for dispensation of the deposit of the duty, the appellants would have contended that the petitions under Art. 226 were not maintainable. Moreover, as already stated, the petitions raised a question of jurisdiction.As we have already said, the appeals are filed under S. 35 of the Excise Act. Section 129 of the Customs Act debars the hearing of them unless the duty or penalty is paid. This, it seems to us, is not procedure relating to appeals.These observations are fully applicable in the present case. Section 35 of the Excise Act gave a right of appeal, but S. 129 of the Customs Act whittles down the substantive right of appeal and accordingly it cannot be regarded as procedure relating to appeals within S. 12 of the Excise Act. | 0 | 1,754 | 278 | ### 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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the appeals as the notification dated May 4. 1963, was bad in so far as it applied S. 129 of the Customs Act. In these circumstances it was not necessary for the petitioner to have filed revisions.5. There is equally no force in the second point. If the petitioner had not applied for dispensation of the deposit of the duty, the appellants would have contended that the petitions under Art. 226 were not maintainable. Moreover, as already stated, the petitions raised a question of jurisdiction.6. To appreciate the third point, it is necessary to extract the relevant statutory provisions. Section 12 of the Excise Act authorises the Central Government to apply provisions of the Sea Customs Act, 1878, now replaced by the Customs Act, 1962, in the following terms:"12. The Central Government may, by notification in the Official Gazette, declare that any of the provisions of the Sea Customs Act, 1878, relating to the levy of and exemption from customs duties, drawback of duty, warehousing, offences and penalties, confiscation, and procedure relating to offences and appeals shall, with such modifications and alterations as it may consider necessary or desirable to adapt them to the circumstances, be applicable in regard to like matters in respect of the duties imposed by S. 3."7. The relevant part of the impugned notification, dated May 4. 1963, reads as follows :"In exercise of the powers conferred by S. 12 of the Central Excises and Salt Act, 1944 (1 of 1944)..............the Central Government declares that the provisions of..... S. 129 of the Customs Act, 1962, relating to matters specified herein shall be applicable in regard to like matters in respect of the duties imposed by S. 3 of the first mentioned Act......."Section 129 of the Customs Act reads thus:"129. (1) Where the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of customs authorities or any penalty levied under this Act, any person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty demanded or the penalty levied :Provided that where in any particular case the appellate authority is of opinion that the deposit of duty demanded or penalty levied will cause undue hardship to the appellant, it may in its discretion dispense with such deposit, either unconditionally or subject to such conditions as it may deem fit.(2) If upon any such appeal it is decided that the whole or any portion of such duty or penalty was not leviable, the proper officer shall return to the appellant such amount of duty or penalty as was not leviable."8. It will be noticed that S. 129 requires an appellant to deposit the duty or penalty levied pending an appeal. In other words, before an appeal can be heard the appellant must deposit the duty or penalty levied. But under S. 35 of the Excise Act, a person aggrieved by any decision or order has an unfettered right to appeal.The question that arises in these appeals is whether the provisions of S. 129 of the Customs Act can be said to be provisions relating to procedure ............relating to appeals within S. 12 of the Excise Act.9. As we have already said, the appeals are filed under S. 35 of the Excise Act. Section 129 of the Customs Act debars the hearing of them unless the duty or penalty is paid. This, it seems to us, is not procedure relating to appeals. This Court in Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh, AIR 1953 SC 221 = 1963 - 4 STC 114 , had to consider a similar provision in S. 22 of the Central Provinces and Berar Sales Tax Act, 1947. Section 22 (1), as originally enacted, read thus:"22. (1) Any dealer aggrieved by an order under this Act may, in the prescribed manner appeal to the prescribed authority against the order:Provided that no appeal against an order of assessment, with or without penalty, shall be entertained by the said authority unless it is satisfied that such amount of tax or penalty or both as the appellant may admit to be due from him, has been paid." It was amended thus:"22. (1) Any dealer aggrieved by an order under this Act may, in the prescribed manner, appeal to the prescribed authority against the order:Provided that no appeal against an order of assessment, with or without penalty shall be admitted by the said authority unless such appeal is accompanied by a satisfactory proof of the payment of the tax, with penalty, if any, in respect of which the appeal has been preferred."10. S.R. Das, J., as he then was, repelled the argument of the learned Advocate that the the requirement as to the deposit of the amount of the assessed tax does not affect the right of appeal itself, which still remains intact, but only introduces a new matter of procedure, and observed :"There can be no doubt that the new requirement "touches" the substantive right "of appeal vested in the appellant. Nor can it be overlooked that such a requirement is calculated to interfere with or fetter, if not to impair or imperil, the substantive right. The right that the amended section gives is certainly less than the right which was available before. A provision which is calculated to deprive the appellant of the unfettered right of appeal cannot be regarded as a mere alteration in procedure. Indeed the new requirement cannot be said merely to regulate the exercise of the appellants pre-existing right but in truth whittles down the right itself and cannot be regarded as a mere rule of procedure."11. These observations are fully applicable in the present case. Section 35 of the Excise Act gave a right of appeal, but S. 129 of the Customs Act whittles down the substantive right of appeal and accordingly it cannot be regarded as procedure relating to appeals within S. 12 of the Excise Act.
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0
### Explanation:
4. There is no force in the first point. First, the point was not taken in the High Court. Secondly, it is settled that the existence of a remedy by way of revision does not bar the jurisdiction of the High Court to entertain a petition under Art. 226. Moreover, the petitioner had alleged that the Collector had no jurisdiction to demand the deposit or duty pending the appeals as the notification dated May 4. 1963, was bad in so far as it applied S. 129 of the Customs Act. In these circumstances it was not necessary for the petitioner to have filed revisions.5. There is equally no force in the second point. If the petitioner had not applied for dispensation of the deposit of the duty, the appellants would have contended that the petitions under Art. 226 were not maintainable. Moreover, as already stated, the petitions raised a question of jurisdiction.As we have already said, the appeals are filed under S. 35 of the Excise Act. Section 129 of the Customs Act debars the hearing of them unless the duty or penalty is paid. This, it seems to us, is not procedure relating to appeals.These observations are fully applicable in the present case. Section 35 of the Excise Act gave a right of appeal, but S. 129 of the Customs Act whittles down the substantive right of appeal and accordingly it cannot be regarded as procedure relating to appeals within S. 12 of the Excise Act.
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Rashmi Jain Vs. State of U.P. & Another | is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.’21. It is clear from the allegations made in the complaint and the sworn statements that Appellant 1 Company entered into an agreement with Respondent 2 on certain terms and conditions. It is alleged that Appellant 7 went to Patna and contacted Respondent 2 and induced him to enter into an agreement assuring him of huge profit. At the time of arriving at such an agreement, none of the other appellants either met Respondent 2 or induced him to enter into any agreement with a view to cheat him. The agreement was further renewed for a period of one year. It is not the case that there was no supply of goods at all as it has come on record that there was supply of 400 tons of fertilizer, may be it was far less than the required quantity. The allegations made against the appellants other than Appellant 7 are very vague and bald. From the material that was placed before the Magistrate, even prima facie, it cannot be said that there was conspiracy or connivance between the other appellants and Appellant 7. If the appellants have committed breach of agreement, it is open to Respondent 2 to seek redressal in a competent Court or forum to recover damages, if permissible in law in case he had sustained any loss. In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.” 9. Again in G. Sagar Suri & Anr. v. State of U.P. & Ors., I (2000) SLT 499=I (2000) CCR 138 (SC)=I (2000) BC 273 (SC)=(2000) 2 SCC 636 , this Court observed as follows: “8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a Criminal Court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” 10. In Bhajan Lal’s case (supra), this Court enumerated the categories of cases, by way of illustration, wherein the High Court would be justified in exercising its inherent power under Section 487, Cr.P.C. or Article 226 of the Constitution of India to prevent abuse of the process of Court or to otherwise secure the ends of justice. In paragraph 102, these categories of cases are listed as under: “(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 11. In our opinion, the case pleaded by the petitioner, and as argued by Ms. Indu Malhotra, squarely falls within the ambit of propositions 5 and 7. | 1[ds]In our opinion, the aforesaid averment has been made only to foist criminal liability on the appellant by converting a purely civil dispute into criminal act, alleged to have been committed by the appellant. The allegations are absurd and outlandish on the face of it; firstly, the appellant is a lady, a widow, who was not accompanied by anybody else at the time of the alleged occurrence; secondly, she, though being a resident of Delhi, misbehaved with number of high and mighty parties, with whom she had earlier transacted business, at Moradabad. In our opinion, these are allegations which on the face of it, can not be taken seriously by any reasonable person. The High Court, in our opinion, has committed jurisdictional error in dismissing the criminal petition filed by the appellant on the ground that it involves disputed questions of fact, which can only be gone into by the trial Court.6. The fact that the dispute involved between the parties is purely civil in nature and has, in fact, been admitted in the counter affidavit filed on behalf of respondent No. 2. In Paragraph 5.1, it has been stated asThat the contents of the para No. 5.1 are wrong. Hence denied. The complaint clearly disclose the commission of criminal offence. It is correct that the dispute was initially pertaining to commercial one, however this commercial dispute has been converted into criminal one later on.Clearly, it is evident that the utterances which are attributed to the appellant have been inserted in the complaint with a malicious intent to convert a purely civil dispute into a criminal offence.In our opinion, the case pleaded by the petitioner, and as argued by Ms. Indu Malhotra, squarely falls within the ambit of propositions 5 and 7. | 1 | 2,955 | 332 | ### Instruction:
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is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.’21. It is clear from the allegations made in the complaint and the sworn statements that Appellant 1 Company entered into an agreement with Respondent 2 on certain terms and conditions. It is alleged that Appellant 7 went to Patna and contacted Respondent 2 and induced him to enter into an agreement assuring him of huge profit. At the time of arriving at such an agreement, none of the other appellants either met Respondent 2 or induced him to enter into any agreement with a view to cheat him. The agreement was further renewed for a period of one year. It is not the case that there was no supply of goods at all as it has come on record that there was supply of 400 tons of fertilizer, may be it was far less than the required quantity. The allegations made against the appellants other than Appellant 7 are very vague and bald. From the material that was placed before the Magistrate, even prima facie, it cannot be said that there was conspiracy or connivance between the other appellants and Appellant 7. If the appellants have committed breach of agreement, it is open to Respondent 2 to seek redressal in a competent Court or forum to recover damages, if permissible in law in case he had sustained any loss. In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.” 9. Again in G. Sagar Suri & Anr. v. State of U.P. & Ors., I (2000) SLT 499=I (2000) CCR 138 (SC)=I (2000) BC 273 (SC)=(2000) 2 SCC 636 , this Court observed as follows: “8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a Criminal Court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” 10. In Bhajan Lal’s case (supra), this Court enumerated the categories of cases, by way of illustration, wherein the High Court would be justified in exercising its inherent power under Section 487, Cr.P.C. or Article 226 of the Constitution of India to prevent abuse of the process of Court or to otherwise secure the ends of justice. In paragraph 102, these categories of cases are listed as under: “(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 11. In our opinion, the case pleaded by the petitioner, and as argued by Ms. Indu Malhotra, squarely falls within the ambit of propositions 5 and 7.
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### Explanation:
In our opinion, the aforesaid averment has been made only to foist criminal liability on the appellant by converting a purely civil dispute into criminal act, alleged to have been committed by the appellant. The allegations are absurd and outlandish on the face of it; firstly, the appellant is a lady, a widow, who was not accompanied by anybody else at the time of the alleged occurrence; secondly, she, though being a resident of Delhi, misbehaved with number of high and mighty parties, with whom she had earlier transacted business, at Moradabad. In our opinion, these are allegations which on the face of it, can not be taken seriously by any reasonable person. The High Court, in our opinion, has committed jurisdictional error in dismissing the criminal petition filed by the appellant on the ground that it involves disputed questions of fact, which can only be gone into by the trial Court.6. The fact that the dispute involved between the parties is purely civil in nature and has, in fact, been admitted in the counter affidavit filed on behalf of respondent No. 2. In Paragraph 5.1, it has been stated asThat the contents of the para No. 5.1 are wrong. Hence denied. The complaint clearly disclose the commission of criminal offence. It is correct that the dispute was initially pertaining to commercial one, however this commercial dispute has been converted into criminal one later on.Clearly, it is evident that the utterances which are attributed to the appellant have been inserted in the complaint with a malicious intent to convert a purely civil dispute into a criminal offence.In our opinion, the case pleaded by the petitioner, and as argued by Ms. Indu Malhotra, squarely falls within the ambit of propositions 5 and 7.
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Amar Jyoti Stone Crusting Company Vs. Union of India and Others | of the appellants admitted possession of the property. This however is entirely without force, since the possession of the minerals, with which alone we are now concerned was under the permit granted by the Collector-a situation which clearly negatived the plaintiffs ownership of the minerals having regard to the scheme of the Minor Mineral Rules. The Courts below were therefore right in holding that the appellants claim on the basis of established proprietary rights to the quarry should fail.6. The respondents have filed in this Court an application for the admission of additional evidence and the items of evidence so sought to be admitted are the entries in the wajib-ul-arz of the record of rights of the suit-village prepared in 1880 and 1908-09. These clearly recite the fact that the Government were owners of the stone-quarries in the village. Learned Counsel for the appellant strenuously objected to the admission of additional evidence at this stage and submitted that if the application were allowed he should be given an opportunity of adducing evidence to disprove the correctness of these entries. In view of our conclusion as regards the rights of the appellant even without these additional documents, we do not consider it necessary to admit them. We hold that the appellant has not proved its title to the mineral rights in the suit lands and that its claim for a declaration on that basis was properly dismissed by the Courts below.7. The other point urged by learned Counsel was that even if it be that the Government were the proprietors of the minerals and the permission of the Collector was necessary to be obtained under the Minor Mineral Rules. 1938, still the Collector was under a legal obligation to grant a permit to the appellants unless there were proper grounds for refusing the permit and that the grounds of his refusal in the present case were improper and mala fide. In this connection it was pointed out that the Collector had refused the permit sought by the appellant because of a resolution of the Delhi Development Provisional Authority constituted under Act 53 of 1955. By reason of proceedings of that authority the land in suit had been included in "a controlled area", i. e., an area which was reserved for other purposes, with the result that it was thought proper and expedient to prohibit quarrying in it. In the plaint it was alleged that the Collector acted improperly in giving effect to the recommendation of the Board in the matter of prohibiting quarrying on the suit-land. Before us, however, learned Counsel did not seriously contest the position that if the land was in "a controlled area" under Act 53 of 1955 and there was need to prohibit quarrying in the interests of the health of the people inhabiting the residential area adjoining the quarries, and the Collector was appraised of this fact by the Development Authority the order of the Collector refusing permission could not be successfully impugned. But learned Counsel urged that Act 53 of 1955 had ceased to be operative after December 30, 1957 when it was replaced by the Delhi Development Act of 1957 and that under the latter enactment the area had not been so notified. Having regard to this changed situation the contention was, that at the date when the trial Court passed judgment it should have taken judicial notice of the fact that Act 53of 1955 had ceased to be in force and that the notification there under had lapsed and that if these matters were taken into account the appellant had a clear legal right to the relief of mandamus which he prayed for, directing the Collector to grant the permission sought. It is not necessary for the purpose of this case to examine the limits subject to which a Court could take into account subsequent facts and afford relief on the basis of such facts. The position so far as the appellant was concerned was this. It had made an application to the Collector to permit it to quarry stones and this had been refused. It was this refusal which was challenged as illegal and it was on this basis that the relief of mandatory injunction was sought in the plaint. It would be one thing if the appellant was able to make out the case that the Collectors refusal to grant the permission in April-May 1957 was improper but that is not the situation here. The argument was that the trial Court ought to have taken into account the fact that long subsequent to the filing of the plaint the statute or order which justified the refusal of the permission had ceased to exist and this vested in the appellant a right to obtain the grant of a permit. The argument, in our opinion, proceeds on a fallacy. If the application of the appellant was properly refused by the Collector before the suit, the result was that there was no pending application before the authority for the grant of a permit. It is common ground that during the pendency of these proceedings in the trial Court no fresh application was made to the Collector on the basis of the altered state of facts. There was consequently no application pending before the Collector which he could be directed by the issue of a mandatory injunction by the Court to grant. It is clear therefore that the change in the law in the shape of Act 53 of 1955 ceasing to be operative does not assist the appellant to obtain any relief in this suit.8. In the view we have taken it is not necessary for us to canvass the point which has been discussed in the Courts below as to whether in cases where the Government is the owner of a property its discretion in its management and control could be the subject of directions by the Court unless, of course, the statute or statutory rule enables individuals to claim any particular rights. | 0[ds]5. There were however two facts before the Courts on the basis of which the title to the minerals could have been decided. The first was that the appellant had been working the minerals only on the strength of permits obtained from the Collector and, as we have pointed out earlier, this could have happened only if its lessor was not the owner of the minerals. Learned Counsel, no doubt, sought to explain this conduct of the appellant on the basis that it might have made application for a permit under a mistake as to its rights. This however does not help him, because the making of the application would constitute an admission which would throw upon the appellant the burden of proving that it was done under a mistake and the mistake established to the satisfaction of the Court. This was not even attempted. This apart, a plaintiff who comes to Court with an allegation that he is the owner of the minerals would have to prove his title to the property before he could succeed in the suit, but the appellant led no evidence to prove his title. Mr. Bindra made a submission that a presumption in favour of the plaintiffs ownership arose under S. 110 of the Indian Evidence Act by reason of the appellants admitted possession of the property. This however is entirely without force, since the possession of the minerals, with which alone we are now concerned was under the permit granted by the Collector-a situation which clearly negatived the plaintiffs ownership of the minerals having regard to the scheme of the Minor Mineral Rules. The Courts below were therefore right in holding that the appellants claim on the basis of established proprietary rights to the quarry shouldview of our conclusion as regards the rights of the appellant even without these additional documents, we do not consider it necessary to admit them. We hold that the appellant has not proved its title to the mineral rights in the suit lands and that its claim for a declaration on that basis was properly dismissed by the Courtsargument, in our opinion, proceeds on a fallacy. If the application of the appellant was properly refused by the Collector before the suit, the result was that there was no pending application before the authority for the grant of a permit. It is common ground that during the pendency of these proceedings in the trial Court no fresh application was made to the Collector on the basis of the altered state of facts. There was consequently no application pending before the Collector which he could be directed by the issue of a mandatory injunction by the Court to grant. It is clear therefore that the change in the law in the shape of Act 53 of 1955 ceasing to be operative does not assist the appellant to obtain any relief in this suit.8. In the view we have taken it is not necessary for us to canvass the point which has been discussed in the Courts below as to whether in cases where the Government is the owner of a property its discretion in its management and control could be the subject of directions by the Court unless, of course, the statute or statutory rule enables individuals to claim any particular rights. | 0 | 2,679 | 587 | ### 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:
of the appellants admitted possession of the property. This however is entirely without force, since the possession of the minerals, with which alone we are now concerned was under the permit granted by the Collector-a situation which clearly negatived the plaintiffs ownership of the minerals having regard to the scheme of the Minor Mineral Rules. The Courts below were therefore right in holding that the appellants claim on the basis of established proprietary rights to the quarry should fail.6. The respondents have filed in this Court an application for the admission of additional evidence and the items of evidence so sought to be admitted are the entries in the wajib-ul-arz of the record of rights of the suit-village prepared in 1880 and 1908-09. These clearly recite the fact that the Government were owners of the stone-quarries in the village. Learned Counsel for the appellant strenuously objected to the admission of additional evidence at this stage and submitted that if the application were allowed he should be given an opportunity of adducing evidence to disprove the correctness of these entries. In view of our conclusion as regards the rights of the appellant even without these additional documents, we do not consider it necessary to admit them. We hold that the appellant has not proved its title to the mineral rights in the suit lands and that its claim for a declaration on that basis was properly dismissed by the Courts below.7. The other point urged by learned Counsel was that even if it be that the Government were the proprietors of the minerals and the permission of the Collector was necessary to be obtained under the Minor Mineral Rules. 1938, still the Collector was under a legal obligation to grant a permit to the appellants unless there were proper grounds for refusing the permit and that the grounds of his refusal in the present case were improper and mala fide. In this connection it was pointed out that the Collector had refused the permit sought by the appellant because of a resolution of the Delhi Development Provisional Authority constituted under Act 53 of 1955. By reason of proceedings of that authority the land in suit had been included in "a controlled area", i. e., an area which was reserved for other purposes, with the result that it was thought proper and expedient to prohibit quarrying in it. In the plaint it was alleged that the Collector acted improperly in giving effect to the recommendation of the Board in the matter of prohibiting quarrying on the suit-land. Before us, however, learned Counsel did not seriously contest the position that if the land was in "a controlled area" under Act 53 of 1955 and there was need to prohibit quarrying in the interests of the health of the people inhabiting the residential area adjoining the quarries, and the Collector was appraised of this fact by the Development Authority the order of the Collector refusing permission could not be successfully impugned. But learned Counsel urged that Act 53 of 1955 had ceased to be operative after December 30, 1957 when it was replaced by the Delhi Development Act of 1957 and that under the latter enactment the area had not been so notified. Having regard to this changed situation the contention was, that at the date when the trial Court passed judgment it should have taken judicial notice of the fact that Act 53of 1955 had ceased to be in force and that the notification there under had lapsed and that if these matters were taken into account the appellant had a clear legal right to the relief of mandamus which he prayed for, directing the Collector to grant the permission sought. It is not necessary for the purpose of this case to examine the limits subject to which a Court could take into account subsequent facts and afford relief on the basis of such facts. The position so far as the appellant was concerned was this. It had made an application to the Collector to permit it to quarry stones and this had been refused. It was this refusal which was challenged as illegal and it was on this basis that the relief of mandatory injunction was sought in the plaint. It would be one thing if the appellant was able to make out the case that the Collectors refusal to grant the permission in April-May 1957 was improper but that is not the situation here. The argument was that the trial Court ought to have taken into account the fact that long subsequent to the filing of the plaint the statute or order which justified the refusal of the permission had ceased to exist and this vested in the appellant a right to obtain the grant of a permit. The argument, in our opinion, proceeds on a fallacy. If the application of the appellant was properly refused by the Collector before the suit, the result was that there was no pending application before the authority for the grant of a permit. It is common ground that during the pendency of these proceedings in the trial Court no fresh application was made to the Collector on the basis of the altered state of facts. There was consequently no application pending before the Collector which he could be directed by the issue of a mandatory injunction by the Court to grant. It is clear therefore that the change in the law in the shape of Act 53 of 1955 ceasing to be operative does not assist the appellant to obtain any relief in this suit.8. In the view we have taken it is not necessary for us to canvass the point which has been discussed in the Courts below as to whether in cases where the Government is the owner of a property its discretion in its management and control could be the subject of directions by the Court unless, of course, the statute or statutory rule enables individuals to claim any particular rights.
### Response:
0
### Explanation:
5. There were however two facts before the Courts on the basis of which the title to the minerals could have been decided. The first was that the appellant had been working the minerals only on the strength of permits obtained from the Collector and, as we have pointed out earlier, this could have happened only if its lessor was not the owner of the minerals. Learned Counsel, no doubt, sought to explain this conduct of the appellant on the basis that it might have made application for a permit under a mistake as to its rights. This however does not help him, because the making of the application would constitute an admission which would throw upon the appellant the burden of proving that it was done under a mistake and the mistake established to the satisfaction of the Court. This was not even attempted. This apart, a plaintiff who comes to Court with an allegation that he is the owner of the minerals would have to prove his title to the property before he could succeed in the suit, but the appellant led no evidence to prove his title. Mr. Bindra made a submission that a presumption in favour of the plaintiffs ownership arose under S. 110 of the Indian Evidence Act by reason of the appellants admitted possession of the property. This however is entirely without force, since the possession of the minerals, with which alone we are now concerned was under the permit granted by the Collector-a situation which clearly negatived the plaintiffs ownership of the minerals having regard to the scheme of the Minor Mineral Rules. The Courts below were therefore right in holding that the appellants claim on the basis of established proprietary rights to the quarry shouldview of our conclusion as regards the rights of the appellant even without these additional documents, we do not consider it necessary to admit them. We hold that the appellant has not proved its title to the mineral rights in the suit lands and that its claim for a declaration on that basis was properly dismissed by the Courtsargument, in our opinion, proceeds on a fallacy. If the application of the appellant was properly refused by the Collector before the suit, the result was that there was no pending application before the authority for the grant of a permit. It is common ground that during the pendency of these proceedings in the trial Court no fresh application was made to the Collector on the basis of the altered state of facts. There was consequently no application pending before the Collector which he could be directed by the issue of a mandatory injunction by the Court to grant. It is clear therefore that the change in the law in the shape of Act 53 of 1955 ceasing to be operative does not assist the appellant to obtain any relief in this suit.8. In the view we have taken it is not necessary for us to canvass the point which has been discussed in the Courts below as to whether in cases where the Government is the owner of a property its discretion in its management and control could be the subject of directions by the Court unless, of course, the statute or statutory rule enables individuals to claim any particular rights.
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Elektron Lighting Systems Pvt Ltd And Anr Vs. Shah Investments Financials Developments And Consultants Pvt Ltd And Ors Etc | One month was consumed in carrying out the said activities and in no way can it be termed as a hurried process, as held by the High Court. 19. Therefore, in our opinion, the High Court has erred in law in holding that the work order was illegally given to the appellants in respect of replacement of street lights by LED fittings and refurbishment of street light infrastructure on BOT basis. 20. Now, we come to that part of work order and consequential agreement by which advertising rights were also granted to the appellants on the basis of letter dated 19.8.2014 sent by the appellants to the Municipal Corporation. The High Court has taken serious note of the letter dated 19.08.2014 (a day before submission of technical bid) in which the appellants has made certain suggestions to the municipal corporation. Copy of said letter is reproduced below: - The Commissioner, Aurangabad Municipal Corporation Aurangabad, Maharashtra Sub: Additional Suggestions toward Tender-UNCONDITIONAL Respected Sir, We are participating in the tender for the LED Street Lighting due to be opened on 21st August, 2014, & there are some additional suggestions towards the same for your kind consideration. These suggestions are unconditional & are being made in favour of the improvement for the City of Aurangabad. It shall be completely at your kind discretion to accept or reject these suggestions. We can offer to implement the Online Internet based Control & Monitoring of the Street Lights from the Switching point. The suitable systems shall use GSM based modems to control the switching ON & OFF of the street lights, to be installed in each control Panel. Though the cost of such a system is quite high, however we are hereby offering to implement the solution at a reduced price of Rs. 36,000/- per Control Panel along with the recurring costs of the GSM communication & software to Online monitor it, provided the Exclusive Advertising rights for all the Street Lights Poles are extended to us. The stipulated number of Control Panels is about 1200, as per the Tender. In case it is decided to implement the New Technology Online control System, we may mutually plan to reduce the number of existing Control Panels to about 600, as the Switching Point system load shall get substantially reduced after implementation of LED Lights. Thus we may offset the cost of reduced Control Panels by using Online Technology without burden of AMC. In case due to logistic issues, the Street Lighting cannot be controlled by the proposed 600 Panels, then whatever additional nos. may be required, cost for the same shall be borne by AMC. As a reciprocal towards implementation of the Online Monitoring & Control, we seek the Exclusive Advertising Rights for all the Street Light Poles. 2. Additional Extended Guarantee Period of Two Years:- We can extend the Additional Guarantee Period from Two Years to Four Years, if required by AMC, on the same terms of Cost as per Part D, i.e. on payment of Rs.95/- per fixture per month. This offer has. Joint Venture Bidder (Electron Lighting System (P) Ltd. & Paragon Cable India) Sd/- Authorized Signatory 21. The above letter discloses that the suggestions were unconditional, leaving it open for the municipal corporation to accept or not to accept the same. Through the above quoted letter the appellants suggested that if exclusive advertising rights are given to the bidder on the street lights pole, the bidder would reduce price by Rs. 36,000/- per control panel. The stipulated number of control panel was 1,200/-, which could be reduced through mutual plan to 600/-. We are of the view that the above offer relating to advertising rights was uncalled for and severable, and not a part of the work for which tender was floated. Learned counsel for the appellants submitted that the appellants are ready to execute the work without taking benefit of said letter as per the work contract relating to replacement of street lights by LED on BOT basis. 22. It is submitted on behalf of the respondent No.3 that though revenue from advertising in city of Aurangabad from other sources, for the financial years 2011-2012, 2012-2013 and 2013-2014 was Rs. 81,31,091=00, 81,15,438=00 and 89,03,976=00 respectively, but the same from advertising on Street Light Poles was nil for each of the three years. As such, the municipal Corporation did not commit any illegality in negotiating the matter with the appellants while awarding the work order to it. 23. In our opinion, the matter regarding advertising rights was separate, and the municipal corporation which is a statutory body and instrumentality of the State should have acted fairly by making it open for all eligible to submit their offers. As such, we think that the respondent No.3 was not justified in giving the advertisement rights to the appellants without inviting tender for it. To that extent, in our opinion, respondent No.3 has not acted fairly. As such, the manner in which the advertising rights are given to the appellants with the work order cannot be said to be fair and contract to that extent was liable to be quashed without interfering with rest of the work order. 24. Explaining the doctrine of severability contained in Section 57 of Indian Contract Act, 1872, in B.O.I. Finance Ltd., v. Custodian and others (1997) 10 SCC 488), a three Judge Bench of this Court has held that question of severance arises only in the case of a composite agreement consisting of reciprocal promises. In Shin Satellite Public Co. Ltd. V. Jain Studios Ltd. (2006) 2 SCC 628 ), this Court has observed that the proper test for deciding validity or otherwise of an order or agreement is substqantial severability and not textual divisibility. It was further held by this Court that it is the duty of the Court to sever and separate trivial and technical parts by retaining the main or substantial part and by giving effect to the latter if it is legal, lawful and otherwise enforceable. | 1[ds]17. It is pertinent to mention here that the tender was invited incorporating the National Lightening Code to ensure the safety of pedestrians and motorists. The tender also specified the Lux levels to be achieved and to be maintained for eight years. The power consumption required to be guaranteed and the contractor was made liable to bear the difference between the excess of actual energy bill over the quoted energy bill. The contractor was made responsible for comprehensive maintenance for all installed equipment over BOT period including any breakage, theft, loss on any account whatsoever. It is worthwhile to mention here that in the pre-bid meeting, representatives of eight bidders stated to have participated and clarified various points regarding the tender notice18. In our opinion, there appears to be no hurry on the part of the municipal corporation, in awarding contract as the tender had been issued on 01.08.2014 and the same was finalized only on 03.09.2014, i.e. after a period of more than one month. Pre-bid meetings were held and the last date for submission of tender was extended twice from 20.08.2014 to 25.08.2014 and thereafter to 28.08.2014, which by itself shows that the process was not carried out in haste. Exhaustive pre-bid meeting was held on 12.08.2014, which was stated to have been attended by eight prospective bidders and the minutes of the pre-bid meetings running into several pages changed many terms in favour of the respondent Corporation to ensure even stricter contract execution responsibilities and thus became part of the tender through issuance of two corrigenda. The pre-bid meeting was held to understand the requirements of the contract viz. the opinion of the prospective bidders, to give sufficient time for bid preparation, evaluation of bids and award of contract. One month was consumed in carrying out the said activities and in no way can it be termed as a hurried process, as held by the High Court19. Therefore, in our opinion, the High Court has erred in law in holding that the work order was illegally given to the appellants in respect of replacement of street lights by LED fittings and refurbishment of street light infrastructure on BOT basis21. The above letter discloses that the suggestions were unconditional, leaving it open for the municipal corporation to accept or not to accept the same. Through the above quoted letter the appellants suggested that if exclusive advertising rights are given to the bidder on the street lights pole, the bidder would reduce price by Rs. 36,000/- per control panel. The stipulated number of control panel was 1,200/-, which could be reduced through mutual plan to 600/-. We are of the view that the above offer relating to advertising rights was uncalled for and severable, and not a part of the work for which tender was floated. Learned counsel for the appellants submitted that the appellants are ready to execute the work without taking benefit of said letter as per the work contract relating to replacement of street lights by LED on BOT basis | 1 | 5,949 | 544 | ### 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:
One month was consumed in carrying out the said activities and in no way can it be termed as a hurried process, as held by the High Court. 19. Therefore, in our opinion, the High Court has erred in law in holding that the work order was illegally given to the appellants in respect of replacement of street lights by LED fittings and refurbishment of street light infrastructure on BOT basis. 20. Now, we come to that part of work order and consequential agreement by which advertising rights were also granted to the appellants on the basis of letter dated 19.8.2014 sent by the appellants to the Municipal Corporation. The High Court has taken serious note of the letter dated 19.08.2014 (a day before submission of technical bid) in which the appellants has made certain suggestions to the municipal corporation. Copy of said letter is reproduced below: - The Commissioner, Aurangabad Municipal Corporation Aurangabad, Maharashtra Sub: Additional Suggestions toward Tender-UNCONDITIONAL Respected Sir, We are participating in the tender for the LED Street Lighting due to be opened on 21st August, 2014, & there are some additional suggestions towards the same for your kind consideration. These suggestions are unconditional & are being made in favour of the improvement for the City of Aurangabad. It shall be completely at your kind discretion to accept or reject these suggestions. We can offer to implement the Online Internet based Control & Monitoring of the Street Lights from the Switching point. The suitable systems shall use GSM based modems to control the switching ON & OFF of the street lights, to be installed in each control Panel. Though the cost of such a system is quite high, however we are hereby offering to implement the solution at a reduced price of Rs. 36,000/- per Control Panel along with the recurring costs of the GSM communication & software to Online monitor it, provided the Exclusive Advertising rights for all the Street Lights Poles are extended to us. The stipulated number of Control Panels is about 1200, as per the Tender. In case it is decided to implement the New Technology Online control System, we may mutually plan to reduce the number of existing Control Panels to about 600, as the Switching Point system load shall get substantially reduced after implementation of LED Lights. Thus we may offset the cost of reduced Control Panels by using Online Technology without burden of AMC. In case due to logistic issues, the Street Lighting cannot be controlled by the proposed 600 Panels, then whatever additional nos. may be required, cost for the same shall be borne by AMC. As a reciprocal towards implementation of the Online Monitoring & Control, we seek the Exclusive Advertising Rights for all the Street Light Poles. 2. Additional Extended Guarantee Period of Two Years:- We can extend the Additional Guarantee Period from Two Years to Four Years, if required by AMC, on the same terms of Cost as per Part D, i.e. on payment of Rs.95/- per fixture per month. This offer has. Joint Venture Bidder (Electron Lighting System (P) Ltd. & Paragon Cable India) Sd/- Authorized Signatory 21. The above letter discloses that the suggestions were unconditional, leaving it open for the municipal corporation to accept or not to accept the same. Through the above quoted letter the appellants suggested that if exclusive advertising rights are given to the bidder on the street lights pole, the bidder would reduce price by Rs. 36,000/- per control panel. The stipulated number of control panel was 1,200/-, which could be reduced through mutual plan to 600/-. We are of the view that the above offer relating to advertising rights was uncalled for and severable, and not a part of the work for which tender was floated. Learned counsel for the appellants submitted that the appellants are ready to execute the work without taking benefit of said letter as per the work contract relating to replacement of street lights by LED on BOT basis. 22. It is submitted on behalf of the respondent No.3 that though revenue from advertising in city of Aurangabad from other sources, for the financial years 2011-2012, 2012-2013 and 2013-2014 was Rs. 81,31,091=00, 81,15,438=00 and 89,03,976=00 respectively, but the same from advertising on Street Light Poles was nil for each of the three years. As such, the municipal Corporation did not commit any illegality in negotiating the matter with the appellants while awarding the work order to it. 23. In our opinion, the matter regarding advertising rights was separate, and the municipal corporation which is a statutory body and instrumentality of the State should have acted fairly by making it open for all eligible to submit their offers. As such, we think that the respondent No.3 was not justified in giving the advertisement rights to the appellants without inviting tender for it. To that extent, in our opinion, respondent No.3 has not acted fairly. As such, the manner in which the advertising rights are given to the appellants with the work order cannot be said to be fair and contract to that extent was liable to be quashed without interfering with rest of the work order. 24. Explaining the doctrine of severability contained in Section 57 of Indian Contract Act, 1872, in B.O.I. Finance Ltd., v. Custodian and others (1997) 10 SCC 488), a three Judge Bench of this Court has held that question of severance arises only in the case of a composite agreement consisting of reciprocal promises. In Shin Satellite Public Co. Ltd. V. Jain Studios Ltd. (2006) 2 SCC 628 ), this Court has observed that the proper test for deciding validity or otherwise of an order or agreement is substqantial severability and not textual divisibility. It was further held by this Court that it is the duty of the Court to sever and separate trivial and technical parts by retaining the main or substantial part and by giving effect to the latter if it is legal, lawful and otherwise enforceable.
### Response:
1
### Explanation:
17. It is pertinent to mention here that the tender was invited incorporating the National Lightening Code to ensure the safety of pedestrians and motorists. The tender also specified the Lux levels to be achieved and to be maintained for eight years. The power consumption required to be guaranteed and the contractor was made liable to bear the difference between the excess of actual energy bill over the quoted energy bill. The contractor was made responsible for comprehensive maintenance for all installed equipment over BOT period including any breakage, theft, loss on any account whatsoever. It is worthwhile to mention here that in the pre-bid meeting, representatives of eight bidders stated to have participated and clarified various points regarding the tender notice18. In our opinion, there appears to be no hurry on the part of the municipal corporation, in awarding contract as the tender had been issued on 01.08.2014 and the same was finalized only on 03.09.2014, i.e. after a period of more than one month. Pre-bid meetings were held and the last date for submission of tender was extended twice from 20.08.2014 to 25.08.2014 and thereafter to 28.08.2014, which by itself shows that the process was not carried out in haste. Exhaustive pre-bid meeting was held on 12.08.2014, which was stated to have been attended by eight prospective bidders and the minutes of the pre-bid meetings running into several pages changed many terms in favour of the respondent Corporation to ensure even stricter contract execution responsibilities and thus became part of the tender through issuance of two corrigenda. The pre-bid meeting was held to understand the requirements of the contract viz. the opinion of the prospective bidders, to give sufficient time for bid preparation, evaluation of bids and award of contract. One month was consumed in carrying out the said activities and in no way can it be termed as a hurried process, as held by the High Court19. Therefore, in our opinion, the High Court has erred in law in holding that the work order was illegally given to the appellants in respect of replacement of street lights by LED fittings and refurbishment of street light infrastructure on BOT basis21. The above letter discloses that the suggestions were unconditional, leaving it open for the municipal corporation to accept or not to accept the same. Through the above quoted letter the appellants suggested that if exclusive advertising rights are given to the bidder on the street lights pole, the bidder would reduce price by Rs. 36,000/- per control panel. The stipulated number of control panel was 1,200/-, which could be reduced through mutual plan to 600/-. We are of the view that the above offer relating to advertising rights was uncalled for and severable, and not a part of the work for which tender was floated. Learned counsel for the appellants submitted that the appellants are ready to execute the work without taking benefit of said letter as per the work contract relating to replacement of street lights by LED on BOT basis
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M/S. Sonic Surgical Vs. National Insurance Company Ltd | Ambala. The insurance policy was also taken at Ambala and the claim for compensation was also made at Ambala. Thus no part of the cause of action arose in Chandigarh. One of us (Honble Mr. Justice Asok Kumar Ganguly) while a Judge of the Calcutta High Court in the case of IFB Automotive Seating and System Ltd. and Others Vs. Union of India AIR 2003 Calcutta, 80 has dealt with the question as to the meaning of the expression cause of action. Placing reliance on a decision of this Court in the case of Union of India Vs. Adani Exports Ltd. AIR 2002 SC 126 , in para 40 of the said judgment it has been observed as under :- "In Adani Exports (AIR 2002 SC 126 ) (supra) the learned Judges in para 13 set out the facts pleaded by the petitioner to give rise to cause of action conferring territorial jurisdiction on the Court at Ahmedabad. One of the facts pleaded is that non-granting and denial utilization of the credit in the pass book will affect the business of the respondents at Ahmedabad. This fact is not pleaded in the case in hand. Even then the learned Judges held that those facts are not sufficient to furnish a cause of action as they are not connected with the relief sought for by the respondents. Here also the relief is against the orders of approval and this High Court has no territorial jurisdiction to grant that relief. Therefore, the communication to the effect that the petitioners representation against orders of approval is rejected is of no consequence. The Supreme Court, further dealing the concept of Article 226(2) and relying on the decision of ONGC (1994 AIR SCW 3287), explained the concept of cause of action in para 17 at page 130 of the report and the relevant extracts wherefrom are excerpted below : "It is clear from the above judgment that each and every fact pleaded by the respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the Courts territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned. The learned Judges also held in para 18 as follows : "The non-granting and denial of credit in the passbook having an ultimate effect, if any, on the business of the respondents at Ahmedabad would not also, in our opinion, give rise to any such cause of action to a Court at Ahmedabad to adjudicate on the actions complained against the appellants." We respectfully agree with the view taken by the Calcutta High Court in the aforesaid decision of IFB Automotive Seating(supra). Hence, in our opinion, no part of the cause of action in the present case arose at Chandigarh. Learned counsel for the appellant then invited our attention to the amendment brought about in Section 17(2) of the Act in the year 2003. The Amended Section 17(2) of the Act reads as under :- "(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,- (a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; (c) the cause of action, wholly or in part, arises." The aforesaid amendment came into force w.e.f. 15.3.2003 whereas the complaint in the present case has been filed in the year 2000 and the cause of action arose in 1999. Hence, in our opinion, the amended section will have no application to the case at hand. Moreover, even if it had application, in our opinion, that will not help the case of the appellant. Learned counsel for the appellant submitted that the respondent-insurance company has a branch office at Chandigarh and hence under the amended Section 17(2) the complaint could have been filed in Chandigarh. We regret, we cannot agree with the learned counsel for the appellant. In our opinion, an interpretation has to be given to the amended Section 17(2) (b) of the Act, which does not lead to an absurd consequence. If the contention of the learned counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the insurance company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench hunting. In our opinion, the expression branch office in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity. [vide G.P. Singhs Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79] In the present case, since the cause of action arose at Ambala, the State Consumer Redressal Commission, Haryana alone will have jurisdiction to entertain the complaint. | 0[ds]Moreover, even if it had application, in our opinion, that will not help the case of the appellant.Learned counsel for the appellant submitted that thee company has a branch office at Chandigarh and hence under the amended Section 17(2) the complaint could have been filed in Chandigarh.We regret, we cannot agree with the learned counsel for the appellant. In our opinion, an interpretation has to be given to the amended Section 17(2) (b) of the Act, which does not lead to an absurd consequence. If the contention of the learned counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the insurance company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench hunting. In our opinion, the expression branch office in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity. [vide G.P. Singhs Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79]In the present case, since the cause of action arose at Ambala, the State Consumer Redressal Commission, Haryana alone will have jurisdiction to entertain the complaint. | 0 | 1,382 | 301 | ### 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:
Ambala. The insurance policy was also taken at Ambala and the claim for compensation was also made at Ambala. Thus no part of the cause of action arose in Chandigarh. One of us (Honble Mr. Justice Asok Kumar Ganguly) while a Judge of the Calcutta High Court in the case of IFB Automotive Seating and System Ltd. and Others Vs. Union of India AIR 2003 Calcutta, 80 has dealt with the question as to the meaning of the expression cause of action. Placing reliance on a decision of this Court in the case of Union of India Vs. Adani Exports Ltd. AIR 2002 SC 126 , in para 40 of the said judgment it has been observed as under :- "In Adani Exports (AIR 2002 SC 126 ) (supra) the learned Judges in para 13 set out the facts pleaded by the petitioner to give rise to cause of action conferring territorial jurisdiction on the Court at Ahmedabad. One of the facts pleaded is that non-granting and denial utilization of the credit in the pass book will affect the business of the respondents at Ahmedabad. This fact is not pleaded in the case in hand. Even then the learned Judges held that those facts are not sufficient to furnish a cause of action as they are not connected with the relief sought for by the respondents. Here also the relief is against the orders of approval and this High Court has no territorial jurisdiction to grant that relief. Therefore, the communication to the effect that the petitioners representation against orders of approval is rejected is of no consequence. The Supreme Court, further dealing the concept of Article 226(2) and relying on the decision of ONGC (1994 AIR SCW 3287), explained the concept of cause of action in para 17 at page 130 of the report and the relevant extracts wherefrom are excerpted below : "It is clear from the above judgment that each and every fact pleaded by the respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the Courts territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned. The learned Judges also held in para 18 as follows : "The non-granting and denial of credit in the passbook having an ultimate effect, if any, on the business of the respondents at Ahmedabad would not also, in our opinion, give rise to any such cause of action to a Court at Ahmedabad to adjudicate on the actions complained against the appellants." We respectfully agree with the view taken by the Calcutta High Court in the aforesaid decision of IFB Automotive Seating(supra). Hence, in our opinion, no part of the cause of action in the present case arose at Chandigarh. Learned counsel for the appellant then invited our attention to the amendment brought about in Section 17(2) of the Act in the year 2003. The Amended Section 17(2) of the Act reads as under :- "(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,- (a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; (c) the cause of action, wholly or in part, arises." The aforesaid amendment came into force w.e.f. 15.3.2003 whereas the complaint in the present case has been filed in the year 2000 and the cause of action arose in 1999. Hence, in our opinion, the amended section will have no application to the case at hand. Moreover, even if it had application, in our opinion, that will not help the case of the appellant. Learned counsel for the appellant submitted that the respondent-insurance company has a branch office at Chandigarh and hence under the amended Section 17(2) the complaint could have been filed in Chandigarh. We regret, we cannot agree with the learned counsel for the appellant. In our opinion, an interpretation has to be given to the amended Section 17(2) (b) of the Act, which does not lead to an absurd consequence. If the contention of the learned counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the insurance company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench hunting. In our opinion, the expression branch office in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity. [vide G.P. Singhs Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79] In the present case, since the cause of action arose at Ambala, the State Consumer Redressal Commission, Haryana alone will have jurisdiction to entertain the complaint.
### Response:
0
### Explanation:
Moreover, even if it had application, in our opinion, that will not help the case of the appellant.Learned counsel for the appellant submitted that thee company has a branch office at Chandigarh and hence under the amended Section 17(2) the complaint could have been filed in Chandigarh.We regret, we cannot agree with the learned counsel for the appellant. In our opinion, an interpretation has to be given to the amended Section 17(2) (b) of the Act, which does not lead to an absurd consequence. If the contention of the learned counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the insurance company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench hunting. In our opinion, the expression branch office in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity. [vide G.P. Singhs Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79]In the present case, since the cause of action arose at Ambala, the State Consumer Redressal Commission, Haryana alone will have jurisdiction to entertain the complaint.
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