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Kerala State Road Transport Corpn Vs. K.O. Varghese | there was no question of any cut off date since Part III of the KSR was being adopted in the past. The same prima facie is not correct. Stand of the Corporation right through has been that it had fixed the date from which the payments were to be made and for that purpose relied on Ex. P-1, letter of the Government. Whether the letter (Ex. P-1) constituted a direction under Section 34 of the Act is an issue which is linked with several other issues like power of the Corporation to fix a different date de hors any special direction of the Government under Section 34 of the Act. Even if it is held that the letter in Ex. P-1 was not in the nature of a special direction, the other issues were required to be considered. That has apparently not been done.29. One of the issues which needed consideration was indication of KSR Part III on the question of paying pension in Corporations order dated 5.5.1984. A distinction has been made between a mere reference or citation of one statute into another and incorporation. A statute may instead of referring to a particular previous statute or to any specific provision therein refer to the law on the subject generally. In such cases a reference is construed to mean that the law is as it reads thereafter including amendments subsequent to the time of adoption, as was noted by Sutherland in Statutory Construction Vol.2, 3rd Edn., p.550 and supplement (1956), p.119.30. The legislation by referable incorporation falls into two categories. That is (i) where a statute by specific reference incorporates the provisions of another statue as at the time of adoption and (ii) where a statute incorporate by general reference. The law concerning a particular subject has a genus. In the former case the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. But in the second category it may be presumed that the legislative intent was to include all the subsequent amendments also made from time to time in the generic law on the subject adopted by the general reference.31. In the former case a modification, repeal or re-enactment of the statute that is referred will also have effect on the statute in which it is referred; but in the latter case any change in the incorporation statute by way of amendment or repeal has no repercussion on the incorporating statute. The rule that the repeal of amendment of an Act which is incorporated in a later Act has no effect on the later Act or on the provisions incorporated therein is subject to four exceptions. They are (i) where the later Act and the earlier Act are supplemental to each other, (ii) where the two Acts are in pari materia, (iii) where the amendment of the earlier Act if not imported in the later Act would render it wholly unworkable and (iv) where the amendment of the earlier Act either expressly or by necessary intendment also applies to the later Act. Even though only particular sections of an earlier Act are incorporated into later statute, in construing the incorporated provisions it may be necessary and permissible to refer to other parts of the earlier statute which are not incorporated. This does not however mean that a provision in the nature of a proviso or exception in the earlier Act which is not brought in by incorporation can be read in a manner so as to limit the meaning of the provision incorporated. Reference to other provisions of the earlier statute is only permissible to cull out meaning of the provision incorporated. 32. In the illuminating words of Lord Esher MR: "If a subsequently Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act as if they had been actually written in it with the pen, or printed on it." (See Re. Woods Estate, Ex Parte, Works and Buildings Commissioners (1986) 31 Ch.D. 607). 33. It may be added that clear intention of the incorporating Act cannot be defeated by such provision of the earlier Act which have not been incorporated. In the interpretation of an incorporated provision, the Court is some times required to formulate variations of details in the context of the incorporating statute. (See Mariyappa vs. State of Karnataka (JI 1998 (1) SC 734) . The merit of legislation by incorporation is brevity which is some times counterbalanced by difficulties and obscurities which it is likely to create. 34. In Minister of Housing and Local Government vs. Hartnell (1965 (1) All E.R. 490 (HL), it was observed that there is a regrettable modern tendency to overdo legislation by reference and to attempt brevity at the expense of lucidity. 35. What is the effect of the letter dated 5.5.1984 and its impact on the authority, if any, of the Corporation to fix cut off date has not been examined by the High Court. C.A. No. 6655 of 2000 36. In addition to the general questions raised in other appeals, one other aspect which needs to be noted is that some amount was sought to be recovered from the respondents on the ground that they were paid amounts in excess of their legal entitlements. The attempt to recover the amount was resisted by the respondent-employees who filed writ petitions before the High Court which at the first instance directed disposal of the representations filed by them. On fresh consideration, orders were passed for recovery. The ground taken for directing recovery was that there was wrong fixation of pay. That was again challenged before the High Court. Taking note of the fact that pay was fixed in 1974 and the writ petitioners were not responsible for any wrong fixation of pay, the recovery of the amount was held to be inequitable by learned Single Judge of the High Court. | 0[ds]36. In addition to the general questions raised in other appeals, one other aspect which needs to be noted is that some amount was sought to be recovered from the respondents on the ground that they were paid amounts in excess of their legal entitlements. The attempt to recover the amount was resisted by thewho filed writ petitions before the High Court which at the first instance directed disposal of the representations filed by them. On fresh consideration, orders were passed for recovery. The ground taken for directing recovery was that there was wrong fixation of pay. That was again challenged before the High Court. Taking note of the fact that pay was fixed in 1974 and the writ petitioners were not responsible for any wrong fixation of pay, the recovery of the amount was held to be inequitable by learned Single Judge of the High Court.From the perusal of the order passed by the Division Bench Bench, it appears that it proceeded on the basis as if the questions for consideration related entitlement to receive enhanced pension and dearness reliefs. As noted above, there was no dispute about entitlement and what was in controversy related to the date for which the payment was to be made. The High Court further proceeded on the basis that there was no question of any cut off date since Part III of the KSR was being adopted in the past. The same prima facie is not correct. Stand of the Corporation right through has been that it had fixed the date from which the payments were to be made and for that purpose relied on Ex.letter of the Government. Whether the letter (Ex.constituted a direction under Section 34 of the Act is an issue which is linked with several other issues like power of the Corporation to fix a different date de hors any special direction of the Government under Section 34 of the Act. Even if it is held that the letter in Ex.was not in the nature of a special direction, the other issues were required to be considered. That has apparently not been done.29. One of the issues which needed consideration was indication of KSR Part III on the question of paying pension in Corporations order dated 5.5.1984. A distinction has been made between a mere reference or citation of one statute into another and incorporation. A statute may instead of referring to a particular previous statute or to any specific provision therein refer to the law on the subject generally. In such cases a reference is construed to mean that the law is as it reads thereafter including amendments subsequent to the time of adoption, as was noted by Sutherland in Statutory Construction Vol.2, 3rd Edn., p.550 and supplement (1956), p.119.30. The legislation by referable incorporation falls into two categories. That is (i) where a statute by specific reference incorporates the provisions of another statue as at the time of adoption and (ii) where a statute incorporate by general reference. The law concerning a particular subject has a genus. In the former case the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. But in the second category it may be presumed that the legislative intent was to include all the subsequent amendments also made from time to time in the generic law on the subject adopted by the general reference.31. In the former case a modification, repeal orof the statute that is referred will also have effect on the statute in which it is referred; but in the latter case any change in the incorporation statute by way of amendment or repeal has no repercussion on the incorporating statute. The rule that the repeal of amendment of an Act which is incorporated in a later Act has no effect on the later Act or on the provisions incorporated therein is subject to four exceptions. They are (i) where the later Act and the earlier Act are supplemental to each other, (ii) where the two Acts are in pari materia, (iii) where the amendment of the earlier Act if not imported in the later Act would render it wholly unworkable and (iv) where the amendment of the earlier Act either expressly or by necessary intendment also applies to the later Act. Even though only particular sections of an earlier Act are incorporated into later statute, in construing the incorporated provisions it may be necessary and permissible to refer to other parts of the earlier statute which are not incorporated. This does not however mean that a provision in the nature of a proviso or exception in the earlier Act which is not brought in by incorporation can be read in a manner so as to limit the meaning of the provision incorporated. Reference to other provisions of the earlier statute is only permissible to cull out meaning of the provision incorporated. | 0 | 5,614 | 882 | ### Instruction:
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### Input:
there was no question of any cut off date since Part III of the KSR was being adopted in the past. The same prima facie is not correct. Stand of the Corporation right through has been that it had fixed the date from which the payments were to be made and for that purpose relied on Ex. P-1, letter of the Government. Whether the letter (Ex. P-1) constituted a direction under Section 34 of the Act is an issue which is linked with several other issues like power of the Corporation to fix a different date de hors any special direction of the Government under Section 34 of the Act. Even if it is held that the letter in Ex. P-1 was not in the nature of a special direction, the other issues were required to be considered. That has apparently not been done.29. One of the issues which needed consideration was indication of KSR Part III on the question of paying pension in Corporations order dated 5.5.1984. A distinction has been made between a mere reference or citation of one statute into another and incorporation. A statute may instead of referring to a particular previous statute or to any specific provision therein refer to the law on the subject generally. In such cases a reference is construed to mean that the law is as it reads thereafter including amendments subsequent to the time of adoption, as was noted by Sutherland in Statutory Construction Vol.2, 3rd Edn., p.550 and supplement (1956), p.119.30. The legislation by referable incorporation falls into two categories. That is (i) where a statute by specific reference incorporates the provisions of another statue as at the time of adoption and (ii) where a statute incorporate by general reference. The law concerning a particular subject has a genus. In the former case the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. But in the second category it may be presumed that the legislative intent was to include all the subsequent amendments also made from time to time in the generic law on the subject adopted by the general reference.31. In the former case a modification, repeal or re-enactment of the statute that is referred will also have effect on the statute in which it is referred; but in the latter case any change in the incorporation statute by way of amendment or repeal has no repercussion on the incorporating statute. The rule that the repeal of amendment of an Act which is incorporated in a later Act has no effect on the later Act or on the provisions incorporated therein is subject to four exceptions. They are (i) where the later Act and the earlier Act are supplemental to each other, (ii) where the two Acts are in pari materia, (iii) where the amendment of the earlier Act if not imported in the later Act would render it wholly unworkable and (iv) where the amendment of the earlier Act either expressly or by necessary intendment also applies to the later Act. Even though only particular sections of an earlier Act are incorporated into later statute, in construing the incorporated provisions it may be necessary and permissible to refer to other parts of the earlier statute which are not incorporated. This does not however mean that a provision in the nature of a proviso or exception in the earlier Act which is not brought in by incorporation can be read in a manner so as to limit the meaning of the provision incorporated. Reference to other provisions of the earlier statute is only permissible to cull out meaning of the provision incorporated. 32. In the illuminating words of Lord Esher MR: "If a subsequently Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act as if they had been actually written in it with the pen, or printed on it." (See Re. Woods Estate, Ex Parte, Works and Buildings Commissioners (1986) 31 Ch.D. 607). 33. It may be added that clear intention of the incorporating Act cannot be defeated by such provision of the earlier Act which have not been incorporated. In the interpretation of an incorporated provision, the Court is some times required to formulate variations of details in the context of the incorporating statute. (See Mariyappa vs. State of Karnataka (JI 1998 (1) SC 734) . The merit of legislation by incorporation is brevity which is some times counterbalanced by difficulties and obscurities which it is likely to create. 34. In Minister of Housing and Local Government vs. Hartnell (1965 (1) All E.R. 490 (HL), it was observed that there is a regrettable modern tendency to overdo legislation by reference and to attempt brevity at the expense of lucidity. 35. What is the effect of the letter dated 5.5.1984 and its impact on the authority, if any, of the Corporation to fix cut off date has not been examined by the High Court. C.A. No. 6655 of 2000 36. In addition to the general questions raised in other appeals, one other aspect which needs to be noted is that some amount was sought to be recovered from the respondents on the ground that they were paid amounts in excess of their legal entitlements. The attempt to recover the amount was resisted by the respondent-employees who filed writ petitions before the High Court which at the first instance directed disposal of the representations filed by them. On fresh consideration, orders were passed for recovery. The ground taken for directing recovery was that there was wrong fixation of pay. That was again challenged before the High Court. Taking note of the fact that pay was fixed in 1974 and the writ petitioners were not responsible for any wrong fixation of pay, the recovery of the amount was held to be inequitable by learned Single Judge of the High Court.
### Response:
0
### Explanation:
36. In addition to the general questions raised in other appeals, one other aspect which needs to be noted is that some amount was sought to be recovered from the respondents on the ground that they were paid amounts in excess of their legal entitlements. The attempt to recover the amount was resisted by thewho filed writ petitions before the High Court which at the first instance directed disposal of the representations filed by them. On fresh consideration, orders were passed for recovery. The ground taken for directing recovery was that there was wrong fixation of pay. That was again challenged before the High Court. Taking note of the fact that pay was fixed in 1974 and the writ petitioners were not responsible for any wrong fixation of pay, the recovery of the amount was held to be inequitable by learned Single Judge of the High Court.From the perusal of the order passed by the Division Bench Bench, it appears that it proceeded on the basis as if the questions for consideration related entitlement to receive enhanced pension and dearness reliefs. As noted above, there was no dispute about entitlement and what was in controversy related to the date for which the payment was to be made. The High Court further proceeded on the basis that there was no question of any cut off date since Part III of the KSR was being adopted in the past. The same prima facie is not correct. Stand of the Corporation right through has been that it had fixed the date from which the payments were to be made and for that purpose relied on Ex.letter of the Government. Whether the letter (Ex.constituted a direction under Section 34 of the Act is an issue which is linked with several other issues like power of the Corporation to fix a different date de hors any special direction of the Government under Section 34 of the Act. Even if it is held that the letter in Ex.was not in the nature of a special direction, the other issues were required to be considered. That has apparently not been done.29. One of the issues which needed consideration was indication of KSR Part III on the question of paying pension in Corporations order dated 5.5.1984. A distinction has been made between a mere reference or citation of one statute into another and incorporation. A statute may instead of referring to a particular previous statute or to any specific provision therein refer to the law on the subject generally. In such cases a reference is construed to mean that the law is as it reads thereafter including amendments subsequent to the time of adoption, as was noted by Sutherland in Statutory Construction Vol.2, 3rd Edn., p.550 and supplement (1956), p.119.30. The legislation by referable incorporation falls into two categories. That is (i) where a statute by specific reference incorporates the provisions of another statue as at the time of adoption and (ii) where a statute incorporate by general reference. The law concerning a particular subject has a genus. In the former case the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. But in the second category it may be presumed that the legislative intent was to include all the subsequent amendments also made from time to time in the generic law on the subject adopted by the general reference.31. In the former case a modification, repeal orof the statute that is referred will also have effect on the statute in which it is referred; but in the latter case any change in the incorporation statute by way of amendment or repeal has no repercussion on the incorporating statute. The rule that the repeal of amendment of an Act which is incorporated in a later Act has no effect on the later Act or on the provisions incorporated therein is subject to four exceptions. They are (i) where the later Act and the earlier Act are supplemental to each other, (ii) where the two Acts are in pari materia, (iii) where the amendment of the earlier Act if not imported in the later Act would render it wholly unworkable and (iv) where the amendment of the earlier Act either expressly or by necessary intendment also applies to the later Act. Even though only particular sections of an earlier Act are incorporated into later statute, in construing the incorporated provisions it may be necessary and permissible to refer to other parts of the earlier statute which are not incorporated. This does not however mean that a provision in the nature of a proviso or exception in the earlier Act which is not brought in by incorporation can be read in a manner so as to limit the meaning of the provision incorporated. Reference to other provisions of the earlier statute is only permissible to cull out meaning of the provision incorporated.
|
Gafoora & Another Vs. Deputy Director of Consolidation, Meerut & Others | P.K. Goswami, J.1. This order will govern all the above four appeals.2. The above civil appeals are directed against the common judgment of the Allahabad High Court in Writ Petitions Nos. 2143, 2144, 2145 and 2148 of 1971. One Nathu Masih was the recorded bhoomidar of the lands in dispute. The appellants claim to have purchased for valuable consideration the disputed lands by two registered sale deeds both of July 21, 1959, from Nathu Masih. The appellants, however, did not obtain mutation of their names in the record of rights. Meanwhile consolidation proceedings were commenced under the U. P. Consolidation of Holdings Act, 1953 (U. P. Act No. V of 1954) (briefly the Act). Appropriate notifications in C. H. Form 5 were issued under Section 9 read with Rule 25 (c) of the U. P. Consolidation of Holdings Rules, 1954, in November 1966 inviting objections to the issue of extracts from records and statements and publication of records under Sec. 8A of the Act. Under Section 9 (2) objections may be lodged by any person to whom notice has been sent or by any other person interested within 21 days of receipt of the notice or of the publication of the notice under subsection (1). of Section 9. It is admitted that no objection was preferred under Section,9 (2) by the appellants within the prescribed time. However, an objection was lodged on 19th October. 1967, purporting to be one under Section 12 of the Act. When objection was raised by the respondents to this application under Section 12 on September 12, 1968, the appellants on the same day applied to the Consolidation Officer to register their application under Section 9 of the Act and also prayed "that the delay, if any, may be condoned". This application was not supported by any affidavit nor were any grounds mentioned for condonation of the delay. The Consolidation Officer held that the application under Section 12 was not maintainable nor could he condone the delay in absence of any reasons disclosed by the appellants. The applications were, therefore, rejected. The appellants preferred appeals to the Settlement officer (Consolidation) against the orders of the Consolidation Officer. The Settlement Officer allowed the appeals and set aside the orders of the Consolidation Officer dated September 12, 1968 and September 16, 1968, respectively and remanded the cases to the Consolidation Officer with the direction that he should decide them on merits after registering the same under Section 9 of the Act and also consider the question of limitation. The respondents preferred four revisional applications to the Deputy Director (Consolidation) against the common order of the Settlement Officer of March 7, 1969, under Section 48 of the Act. The Deputy Director (Consolidation) went into the whole matter very carefully and set aside the order of the Settlement Officer and restored the orders of the Consolidation Officer of September 12, 1968 and September 16, 1968. The Deputy Director (Consolidation) in substance held that the applications under Section 12 were barred under Section 11A of the Act and were, therefore correctly rejected by the Consolidation Officer. He also held that since objections under Section 9 (2) were not filed by the appellants within time and no cause whatsoever was shown at any State of the proceedings explaining the delay for lodging the objections, these were rightly rejected by the Consolidation Officer. Being aggrieved by the orders of the Deputy Director (Consolidation), the appellants preferred writ applications under Article 226 of the Constitution in the Allahabad High Court and these were dismissed. Hence these appeals by special leave.3. The short question that arises for consideration is whether the High Court is correct is not interfering with the order of the Deputy Director (Consolidation) under Article 226 of the Constitution. Jurisdiction under Article 226 is well settled. The High Court will interfere only if some order is passed by an authority in excess of jurisdiction or there is a manifest error of law, apparent on the face of the records. The principal question that was canvassed before the Deputy Director (Consolidation) was whether failure to prefer objection within the time-limit prescribed under Section 9 (2) of the Act would entitle an aggrieved party to agitate the matter beyond the prescribed period without explaining the cause of delay in preferring the objection and obtaining a proper order of condonation of delay from the appropriate authority. It is clear from the records that no objection was preferred within the prescribed time. The Deputy Director (Consolidation) refused, if we may say so, rightly to accept that the appellants had earlier lodged any objection on November 21, 1966. That being the position, there was no material whatsoever before the Settlement Officer (Consolidation) for exercising his jurisdiction to condone the delay in lodging objection under Section 9 (2) of the Act. Section 11 A bars all objections in respect of claim to land, partition of joint holdings and valuation of plots, etc. relating to the consolidation area which have been raised under Section 9 or which might or ought to have been raised under that section but have not been so raised. These questions under Section 11 A cannot be raised or heard at any subsequent stage of the consolidation proceedings. That being the position there is no error of, law in the order of Deputy Director (Consolidation) nor is there any excess of jurisdiction committed by him of disposing of the matter as he did in exercise of his revisional power under Section 48.4. The learned counsel for the appellants made an earnest appeal to us in the course of the hearing that their valuable rights which they secured by registered purchases from the recorded proprietor had been defeated resulting in grave injustice.That is a matter which this court is not seized of in these appeals and we refrain from expressing any opinion on that submission. | 0[ds]The High Court will interfere only if some order is passed by an authority in excess of jurisdiction or there is a manifest error of law, apparent on the face of the records. The principal question that was canvassed before the Deputy Director (Consolidation) was whether failure to prefer objection within theprescribed under Section 9 (2) of the Act would entitle an aggrieved party to agitate the matter beyond the prescribed period without explaining the cause of delay in preferring the objection and obtaining a proper order of condonation of delay from the appropriate authority. It is clear from the records that no objection was preferred within the prescribed time. The Deputy Director (Consolidation) refused, if we may say so, rightly to accept that the appellants had earlier lodged any objection on November 21, 1966. That being the position, there was no material whatsoever before the Settlement Officer (Consolidation) for exercising his jurisdiction to condone the delay in lodging objection under Section 9 (2) of the Act. Section 11 A bars all objections in respect of claim to land, partition of joint holdings and valuation of plots, etc. relating to the consolidation area which have been raised under Section 9 or which might or ought to have been raised under that section but have not been so raised. These questions under Section 11 A cannot be raised or heard at any subsequent stage of the consolidation proceedings. That being the position there is no error of, law in the order of Deputy Director (Consolidation) nor is there any excess of jurisdiction committed by him of disposing of the matter as he did in exercise of his revisional power under Sectionis a matter which this court is not seized of in these appeals and we refrain from expressing any opinion on that submission. | 0 | 1,097 | 336 | ### Instruction:
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P.K. Goswami, J.1. This order will govern all the above four appeals.2. The above civil appeals are directed against the common judgment of the Allahabad High Court in Writ Petitions Nos. 2143, 2144, 2145 and 2148 of 1971. One Nathu Masih was the recorded bhoomidar of the lands in dispute. The appellants claim to have purchased for valuable consideration the disputed lands by two registered sale deeds both of July 21, 1959, from Nathu Masih. The appellants, however, did not obtain mutation of their names in the record of rights. Meanwhile consolidation proceedings were commenced under the U. P. Consolidation of Holdings Act, 1953 (U. P. Act No. V of 1954) (briefly the Act). Appropriate notifications in C. H. Form 5 were issued under Section 9 read with Rule 25 (c) of the U. P. Consolidation of Holdings Rules, 1954, in November 1966 inviting objections to the issue of extracts from records and statements and publication of records under Sec. 8A of the Act. Under Section 9 (2) objections may be lodged by any person to whom notice has been sent or by any other person interested within 21 days of receipt of the notice or of the publication of the notice under subsection (1). of Section 9. It is admitted that no objection was preferred under Section,9 (2) by the appellants within the prescribed time. However, an objection was lodged on 19th October. 1967, purporting to be one under Section 12 of the Act. When objection was raised by the respondents to this application under Section 12 on September 12, 1968, the appellants on the same day applied to the Consolidation Officer to register their application under Section 9 of the Act and also prayed "that the delay, if any, may be condoned". This application was not supported by any affidavit nor were any grounds mentioned for condonation of the delay. The Consolidation Officer held that the application under Section 12 was not maintainable nor could he condone the delay in absence of any reasons disclosed by the appellants. The applications were, therefore, rejected. The appellants preferred appeals to the Settlement officer (Consolidation) against the orders of the Consolidation Officer. The Settlement Officer allowed the appeals and set aside the orders of the Consolidation Officer dated September 12, 1968 and September 16, 1968, respectively and remanded the cases to the Consolidation Officer with the direction that he should decide them on merits after registering the same under Section 9 of the Act and also consider the question of limitation. The respondents preferred four revisional applications to the Deputy Director (Consolidation) against the common order of the Settlement Officer of March 7, 1969, under Section 48 of the Act. The Deputy Director (Consolidation) went into the whole matter very carefully and set aside the order of the Settlement Officer and restored the orders of the Consolidation Officer of September 12, 1968 and September 16, 1968. The Deputy Director (Consolidation) in substance held that the applications under Section 12 were barred under Section 11A of the Act and were, therefore correctly rejected by the Consolidation Officer. He also held that since objections under Section 9 (2) were not filed by the appellants within time and no cause whatsoever was shown at any State of the proceedings explaining the delay for lodging the objections, these were rightly rejected by the Consolidation Officer. Being aggrieved by the orders of the Deputy Director (Consolidation), the appellants preferred writ applications under Article 226 of the Constitution in the Allahabad High Court and these were dismissed. Hence these appeals by special leave.3. The short question that arises for consideration is whether the High Court is correct is not interfering with the order of the Deputy Director (Consolidation) under Article 226 of the Constitution. Jurisdiction under Article 226 is well settled. The High Court will interfere only if some order is passed by an authority in excess of jurisdiction or there is a manifest error of law, apparent on the face of the records. The principal question that was canvassed before the Deputy Director (Consolidation) was whether failure to prefer objection within the time-limit prescribed under Section 9 (2) of the Act would entitle an aggrieved party to agitate the matter beyond the prescribed period without explaining the cause of delay in preferring the objection and obtaining a proper order of condonation of delay from the appropriate authority. It is clear from the records that no objection was preferred within the prescribed time. The Deputy Director (Consolidation) refused, if we may say so, rightly to accept that the appellants had earlier lodged any objection on November 21, 1966. That being the position, there was no material whatsoever before the Settlement Officer (Consolidation) for exercising his jurisdiction to condone the delay in lodging objection under Section 9 (2) of the Act. Section 11 A bars all objections in respect of claim to land, partition of joint holdings and valuation of plots, etc. relating to the consolidation area which have been raised under Section 9 or which might or ought to have been raised under that section but have not been so raised. These questions under Section 11 A cannot be raised or heard at any subsequent stage of the consolidation proceedings. That being the position there is no error of, law in the order of Deputy Director (Consolidation) nor is there any excess of jurisdiction committed by him of disposing of the matter as he did in exercise of his revisional power under Section 48.4. The learned counsel for the appellants made an earnest appeal to us in the course of the hearing that their valuable rights which they secured by registered purchases from the recorded proprietor had been defeated resulting in grave injustice.That is a matter which this court is not seized of in these appeals and we refrain from expressing any opinion on that submission.
### Response:
0
### Explanation:
The High Court will interfere only if some order is passed by an authority in excess of jurisdiction or there is a manifest error of law, apparent on the face of the records. The principal question that was canvassed before the Deputy Director (Consolidation) was whether failure to prefer objection within theprescribed under Section 9 (2) of the Act would entitle an aggrieved party to agitate the matter beyond the prescribed period without explaining the cause of delay in preferring the objection and obtaining a proper order of condonation of delay from the appropriate authority. It is clear from the records that no objection was preferred within the prescribed time. The Deputy Director (Consolidation) refused, if we may say so, rightly to accept that the appellants had earlier lodged any objection on November 21, 1966. That being the position, there was no material whatsoever before the Settlement Officer (Consolidation) for exercising his jurisdiction to condone the delay in lodging objection under Section 9 (2) of the Act. Section 11 A bars all objections in respect of claim to land, partition of joint holdings and valuation of plots, etc. relating to the consolidation area which have been raised under Section 9 or which might or ought to have been raised under that section but have not been so raised. These questions under Section 11 A cannot be raised or heard at any subsequent stage of the consolidation proceedings. That being the position there is no error of, law in the order of Deputy Director (Consolidation) nor is there any excess of jurisdiction committed by him of disposing of the matter as he did in exercise of his revisional power under Sectionis a matter which this court is not seized of in these appeals and we refrain from expressing any opinion on that submission.
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UNION OF INDIA Vs. COASTAL CONTAINER TRANSPORTERS ASSOCIATION | companies and in turn respondents issue debit note to their customers to the extent of charges payable to the shipping agencies, as such their service falls in the category of goods transport agency but not cargo handling service. While it is the case of the respondents that, show cause notices issued run contrary to circulars dated 06.08.2008 and 05.10.2015 issued by the CBEC, it is the case of the appellants that such circulars are not applicable to the respondents, and the circulars are applicable only when transportation is only by road. In the writ petition filed before the High Court, appellants have filed civil application by raising preliminary objection with regard to the maintainability of the petition under Article 226 of Constitution of India at the stage of show cause notices. Such objection is also rejected by the High Court by recording a finding that there are no factual disputes and also in view of the judgment of this Court in the case of Deputy Commissioner, Central Excise & Anr. v. Sushil and Company (supra). 18. As we are not in agreement with the view taken by the High Court, in entertaining the writ petition against show cause notices, we refrain from recording any finding on contentious issues which arise for consideration. If any finding is recorded by this Court at this stage, same will prejudice either of the parties. Having regard to the contentions raised, it cannot be said that there are no factual disputes. Applicability of the circulars dated 06.08.2008 and 05.10.2015 is also in serious dispute. Further the classifiability of service rendered by a particular assessee is to be considered with reference to facts of each case depending upon nature of service rendered and the contract entered into. There cannot be any general declaration, as prayed for. The judgment of this Court in the case of Deputy Commissioner, Central Excise & Anr. v. Sushil and Company (supra) also cannot be applied to the facts of the case on hand to come to the conclusion that the services rendered by the respondents will fall in the category of goods transport agency but not cargo handling service. In the aforesaid judgment, the contract was only for supply of labour and it was the specific case of the assessee that such labour was not doing any work of packing, unpacking, loading, unloading of any cargo. In view of such written contract for limited services referred above, this Court has held that such service cannot be held to be cargo handling service. The said judgment is distinguishable on facts and same cannot be applied to the case on hand, so as to accept the case of the respondents that their service is to be classified in the category of goods transport agency but not cargo handling service. Further, learned senior counsel appearing for the respondents, Dr. Singhvi, also placed reliance on a judgment of this Court in the case of Paper Products Ltd. (supra) in support of his argument that circulars issued by the CBEC are binding on departmental authorities and they cannot take a contrary stand. It is true that circulars issued by the CBEC are binding on the authorities, but at the same time, such circulars are applicable or not, is a matter which is to be considered with reference to facts of each case. When it is the case of the appellants that such circulars referred above would apply only in case of road transportation but not otherwise, then it is a case for consideration by competent authority on receipt of the explanation but same is no ground to quash the show cause notices. In that view of the matter, we are of the view that the judgment of this Court relied on by learned senior counsel in the case of Paper Products Ltd. (supra) also would not render any support. 19. On the other hand, we find force in the contention of the learned senior counsel, Sri Radhakrishnan, appearing for the appellants that the High Court has committed error in entertaining the writ petition under Article 226 of Constitution of India at the stage of show cause notices. Though there is no bar as such for entertaining the writ petitions at the stage of show cause notice, but it is settled by number of decisions of this Court, where writ petitions can be entertained at the show cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of notice. High Court ought not to have entertained the writ petition, more so, when against the final orders appeal lies to this Court. The judgment of this Court in the case of Union of India & Anr. v. Guwahati Carbon Ltd. (supra) relied on by the learned senior counsel for the appellants also supports their case. In the aforesaid judgment, arising out of Central Excise Act, 1944, this Court has held that excise law is a complete code in order to seek redress in excise matters and held that entertaining writ petition is not proper where alternative remedy under statute is available. When there is a serious dispute with regard to classification of service, the respondents ought to have responded to the show cause notices by placing material in support of their stand but at the same time, there is no reason to approach the High Court questioning the very show cause notices. Further, as held by the High Court, it cannot be said that even from the contents of show cause notices there are no factual disputes. Further, the judgment of this Court in the case of Malladi Drugs & Pharma Ltd. v. Union of India 2004 (166) ELT 153 (S.C.) , relied on by the learned senior counsel for the appellants also supports their case where this Court has upheld the judgment of the High Court which refused to interfere at show cause notice stage. | 1[ds]17. It is the case of the appellants that if service as a whole, is taken into consideration, it falls within the classifiable category of cargo handling service but not goods transport agency. On the other hand, it is the case of the respondents that they only undertake road transportation, and so far as cargo handled by shipping agencies is concerned, they prepare bills in the name of the respondent companies and in turn respondents issue debit note to their customers to the extent of charges payable to the shipping agencies, as such their service falls in the category of goods transport agency but not cargo handling service. While it is the case of the respondents that, show cause notices issued run contrary to circulars dated 06.08.2008 and 05.10.2015 issued by the CBEC, it is the case of the appellants that such circulars are not applicable to the respondents, and the circulars are applicable only when transportation is only by road. In the writ petition filed before the High Court, appellants have filed civil application by raising preliminary objection with regard to the maintainability of the petition under Article 226 of Constitution of India at the stage of show cause notices. Such objection is also rejected by the High Court by recording a finding that there are no factual disputes and also in view of the judgment of this Court in the case of Deputy Commissioner, Central Excise & Anr. v. Sushil and Company (supra)18. As we are not in agreement with the view taken by the High Court, in entertaining the writ petition against show cause notices, we refrain from recording any finding on contentious issues which arise for consideration. If any finding is recorded by this Court at this stage, same will prejudice either of the parties. Having regard to the contentions raised, it cannot be said that there are no factual disputes. Applicability of the circulars dated 06.08.2008 and 05.10.2015 is also in serious dispute. Further the classifiability of service rendered by a particular assessee is to be considered with reference to facts of each case depending upon nature of service rendered and the contract entered into. Therecannot be any general declaration, as prayed for. The judgment of this Court in the case of Deputy Commissioner, Central Excise & Anr. v. Sushil and Company (supra) also cannot be applied to the facts of the case on hand to come to the conclusion that the services rendered by the respondents will fall in the category of goods transport agency but not cargo handling service. In the aforesaid judgment, the contract was only for supply of labour and it was the specific case of the assessee that such labour was not doing any work of packing, unpacking, loading, unloading of any cargo. In view of such written contract for limited services referred above, this Court has held that such service cannot be held to be cargo handling service. The said judgment is distinguishable on facts and same cannot be applied to the case on hand, so as to accept the case of the respondents that their service is to be classified in the category of goods transport agency but not cargo handling service. Further, learned senior counsel appearing for the respondents, Dr. Singhvi, also placed reliance on a judgment of this Court in the case of Paper Products Ltd. (supra) in support of his argument that circulars issued by the CBEC are binding on departmentalauthorities and they cannot take a contrary stand. It is true that circulars issued by the CBEC are binding on the authorities, but at the same time, such circulars are applicable or not, is a matter which is to be considered with reference to facts of each case. When it is the case of the appellants that such circulars referred above would apply only in case of road transportation but not otherwise, then it is a case for consideration by competent authority on receipt of the explanation but same is no ground to quash the show cause notices. In that view of the matter, we are of the view that the judgment of this Court relied on by learned senior counsel in the case of Paper Products Ltd. (supra) also would not render any support19. On the other hand, we find force in the contention of the learned senior counsel, Sri Radhakrishnan, appearing for the appellants that the High Court has committed error in entertaining the writ petition under Article 226 of Constitution of India at the stage of show cause notices. Though there is no bar as such for entertaining the writ petitions at the stage of show cause notice, but it is settled by number of decisions of this Court, where writ petitions can be entertained atthe show cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of notice. High Court ought not to have entertained the writ petition, more so, when against the final orders appeal lies to this Court. The judgment of this Court in the case of Union of India & Anr. v. Guwahati Carbon Ltd. (supra) relied on by the learned senior counsel for the appellants also supports their case. In the aforesaid judgment, arising out of Central Excise Act, 1944, this Court has held that excise law is a complete code in order to seek redress in excise matters and held that entertaining writ petition is not proper where alternative remedy under statute is available. When there is a serious dispute with regard to classification of service, the respondents ought to have responded to the show cause notices by placing material in support of their stand but at the same time, there is no reason to approach the High Court questioning the very show cause notices. Further, as held by the High Court, it cannot be said that even from the contents of show cause notices there are no factual disputes. Further, the judgment of this Court in the case ofMalladi Drugs & Pharma Ltd. v. Union of India 2004 (166) ELT 153 (S.C.) , relied on by the learned senior counsel for the appellants also supports their case where this Court has upheld the judgment of the High Court which refused to interfere at show cause notice stage. | 1 | 4,412 | 1,167 | ### 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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companies and in turn respondents issue debit note to their customers to the extent of charges payable to the shipping agencies, as such their service falls in the category of goods transport agency but not cargo handling service. While it is the case of the respondents that, show cause notices issued run contrary to circulars dated 06.08.2008 and 05.10.2015 issued by the CBEC, it is the case of the appellants that such circulars are not applicable to the respondents, and the circulars are applicable only when transportation is only by road. In the writ petition filed before the High Court, appellants have filed civil application by raising preliminary objection with regard to the maintainability of the petition under Article 226 of Constitution of India at the stage of show cause notices. Such objection is also rejected by the High Court by recording a finding that there are no factual disputes and also in view of the judgment of this Court in the case of Deputy Commissioner, Central Excise & Anr. v. Sushil and Company (supra). 18. As we are not in agreement with the view taken by the High Court, in entertaining the writ petition against show cause notices, we refrain from recording any finding on contentious issues which arise for consideration. If any finding is recorded by this Court at this stage, same will prejudice either of the parties. Having regard to the contentions raised, it cannot be said that there are no factual disputes. Applicability of the circulars dated 06.08.2008 and 05.10.2015 is also in serious dispute. Further the classifiability of service rendered by a particular assessee is to be considered with reference to facts of each case depending upon nature of service rendered and the contract entered into. There cannot be any general declaration, as prayed for. The judgment of this Court in the case of Deputy Commissioner, Central Excise & Anr. v. Sushil and Company (supra) also cannot be applied to the facts of the case on hand to come to the conclusion that the services rendered by the respondents will fall in the category of goods transport agency but not cargo handling service. In the aforesaid judgment, the contract was only for supply of labour and it was the specific case of the assessee that such labour was not doing any work of packing, unpacking, loading, unloading of any cargo. In view of such written contract for limited services referred above, this Court has held that such service cannot be held to be cargo handling service. The said judgment is distinguishable on facts and same cannot be applied to the case on hand, so as to accept the case of the respondents that their service is to be classified in the category of goods transport agency but not cargo handling service. Further, learned senior counsel appearing for the respondents, Dr. Singhvi, also placed reliance on a judgment of this Court in the case of Paper Products Ltd. (supra) in support of his argument that circulars issued by the CBEC are binding on departmental authorities and they cannot take a contrary stand. It is true that circulars issued by the CBEC are binding on the authorities, but at the same time, such circulars are applicable or not, is a matter which is to be considered with reference to facts of each case. When it is the case of the appellants that such circulars referred above would apply only in case of road transportation but not otherwise, then it is a case for consideration by competent authority on receipt of the explanation but same is no ground to quash the show cause notices. In that view of the matter, we are of the view that the judgment of this Court relied on by learned senior counsel in the case of Paper Products Ltd. (supra) also would not render any support. 19. On the other hand, we find force in the contention of the learned senior counsel, Sri Radhakrishnan, appearing for the appellants that the High Court has committed error in entertaining the writ petition under Article 226 of Constitution of India at the stage of show cause notices. Though there is no bar as such for entertaining the writ petitions at the stage of show cause notice, but it is settled by number of decisions of this Court, where writ petitions can be entertained at the show cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of notice. High Court ought not to have entertained the writ petition, more so, when against the final orders appeal lies to this Court. The judgment of this Court in the case of Union of India & Anr. v. Guwahati Carbon Ltd. (supra) relied on by the learned senior counsel for the appellants also supports their case. In the aforesaid judgment, arising out of Central Excise Act, 1944, this Court has held that excise law is a complete code in order to seek redress in excise matters and held that entertaining writ petition is not proper where alternative remedy under statute is available. When there is a serious dispute with regard to classification of service, the respondents ought to have responded to the show cause notices by placing material in support of their stand but at the same time, there is no reason to approach the High Court questioning the very show cause notices. Further, as held by the High Court, it cannot be said that even from the contents of show cause notices there are no factual disputes. Further, the judgment of this Court in the case of Malladi Drugs & Pharma Ltd. v. Union of India 2004 (166) ELT 153 (S.C.) , relied on by the learned senior counsel for the appellants also supports their case where this Court has upheld the judgment of the High Court which refused to interfere at show cause notice stage.
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in the name of the respondent companies and in turn respondents issue debit note to their customers to the extent of charges payable to the shipping agencies, as such their service falls in the category of goods transport agency but not cargo handling service. While it is the case of the respondents that, show cause notices issued run contrary to circulars dated 06.08.2008 and 05.10.2015 issued by the CBEC, it is the case of the appellants that such circulars are not applicable to the respondents, and the circulars are applicable only when transportation is only by road. In the writ petition filed before the High Court, appellants have filed civil application by raising preliminary objection with regard to the maintainability of the petition under Article 226 of Constitution of India at the stage of show cause notices. Such objection is also rejected by the High Court by recording a finding that there are no factual disputes and also in view of the judgment of this Court in the case of Deputy Commissioner, Central Excise & Anr. v. Sushil and Company (supra)18. As we are not in agreement with the view taken by the High Court, in entertaining the writ petition against show cause notices, we refrain from recording any finding on contentious issues which arise for consideration. If any finding is recorded by this Court at this stage, same will prejudice either of the parties. Having regard to the contentions raised, it cannot be said that there are no factual disputes. Applicability of the circulars dated 06.08.2008 and 05.10.2015 is also in serious dispute. Further the classifiability of service rendered by a particular assessee is to be considered with reference to facts of each case depending upon nature of service rendered and the contract entered into. Therecannot be any general declaration, as prayed for. The judgment of this Court in the case of Deputy Commissioner, Central Excise & Anr. v. Sushil and Company (supra) also cannot be applied to the facts of the case on hand to come to the conclusion that the services rendered by the respondents will fall in the category of goods transport agency but not cargo handling service. In the aforesaid judgment, the contract was only for supply of labour and it was the specific case of the assessee that such labour was not doing any work of packing, unpacking, loading, unloading of any cargo. In view of such written contract for limited services referred above, this Court has held that such service cannot be held to be cargo handling service. The said judgment is distinguishable on facts and same cannot be applied to the case on hand, so as to accept the case of the respondents that their service is to be classified in the category of goods transport agency but not cargo handling service. Further, learned senior counsel appearing for the respondents, Dr. Singhvi, also placed reliance on a judgment of this Court in the case of Paper Products Ltd. (supra) in support of his argument that circulars issued by the CBEC are binding on departmentalauthorities and they cannot take a contrary stand. It is true that circulars issued by the CBEC are binding on the authorities, but at the same time, such circulars are applicable or not, is a matter which is to be considered with reference to facts of each case. When it is the case of the appellants that such circulars referred above would apply only in case of road transportation but not otherwise, then it is a case for consideration by competent authority on receipt of the explanation but same is no ground to quash the show cause notices. In that view of the matter, we are of the view that the judgment of this Court relied on by learned senior counsel in the case of Paper Products Ltd. (supra) also would not render any support19. On the other hand, we find force in the contention of the learned senior counsel, Sri Radhakrishnan, appearing for the appellants that the High Court has committed error in entertaining the writ petition under Article 226 of Constitution of India at the stage of show cause notices. Though there is no bar as such for entertaining the writ petitions at the stage of show cause notice, but it is settled by number of decisions of this Court, where writ petitions can be entertained atthe show cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of notice. High Court ought not to have entertained the writ petition, more so, when against the final orders appeal lies to this Court. The judgment of this Court in the case of Union of India & Anr. v. Guwahati Carbon Ltd. (supra) relied on by the learned senior counsel for the appellants also supports their case. In the aforesaid judgment, arising out of Central Excise Act, 1944, this Court has held that excise law is a complete code in order to seek redress in excise matters and held that entertaining writ petition is not proper where alternative remedy under statute is available. When there is a serious dispute with regard to classification of service, the respondents ought to have responded to the show cause notices by placing material in support of their stand but at the same time, there is no reason to approach the High Court questioning the very show cause notices. Further, as held by the High Court, it cannot be said that even from the contents of show cause notices there are no factual disputes. Further, the judgment of this Court in the case ofMalladi Drugs & Pharma Ltd. v. Union of India 2004 (166) ELT 153 (S.C.) , relied on by the learned senior counsel for the appellants also supports their case where this Court has upheld the judgment of the High Court which refused to interfere at show cause notice stage.
|
Bhatia International Vs. Bulk Trading S.A. | to be decrees. A domestic award has to be enforced under the provisions of Civil Procedure Code. All that Section 36 provides is that an enforcement of a domestic award is to take place after the time to make an application to set aside the award has expired or such an application has been refused. Section 9 does suggest that once an award is made an application for interim measure can only be made if the award is a domestic award as defined in Section 2(7) of the said Act. Thus where the Legislature wanted to restrict the applicability of Section 9 it has done so specifically. 29. We see no substance in the submission that there would be unnecessary interference by courts in arbitral proceedings. Section 5 provides that no judicial authority shall intervene except where so provided. Section 9 does not permit any or all applications. It only permits applications for interim measures mentioned in clauses (i) and (ii) thereof. Thus there cannot be applications under Section 9 for stay of arbitral proceedings or to challenge the existence or validity of arbitration agreements or the jurisdiction of the arbitral tribunal. All such challenges would have to be made before the arbitral tribunal under the said Act. 30. Mr. Sen had also submitted that the term arbitral award includes an interim award. He had submitted that it would be open for the arbitral tribunal to pass interim awards and those interim awards could be enforced in India under Part II. However, there is a difference between an interim award and an interim order. Undoubtedly, the arbitral tribunal could pass an interim award. But an interim order or directions passed by the arbitral tribunal would not be enforceable in India. Thus even in respect of arbitrations covered by Part II a party would be precluded from getting any interim relief. In any event, on Mr. Sens interpretation, an award passed in arbitral proceedings held in a non-convention country could not be enforced. Thus such a partly would be left completely remediless. 31. If a party cannot secure, before or during the pendency of the arbitral proceedings, an interim order in respects of items provided in Section 9(i) & (ii) the result may be that the arbitration proceedings may themselves get frustrated e.g. by non appointment of a guardian for a minor or person of unsound mind or the subject matter of the arbitration agreement not being preserved. This could never have been the intention of the Legislature. 32. To conclude we hold that the provisions of Part I would apply to all arbitrations and to all proceedings relating thereto. Where such arbitration is held in India the provisions of Part I would compulsory apply and parties are free to deviate only to the extent permitted by the derogable provisions of Part I. In cases of international commercial arbitrations held out of India provisions of Part I would apply unless the parties by agreement, express or implied, exclude all or any of its provisions. In that case the laws or rules chosen by the parties would prevail. Any provision, in Part I, which is contrary to or excluded by that law or rules will not apply. 33. Faced with this situation Mr. Sen submits that, in this case the parties had agreed that the arbitration be as per the rules of ICC. He submits that thus by necessary implication Section 9 would not apply. In our view in such cases the question would be whether Section 9 gets excluded by the ICC Rules of Arbitration. Article 23 of ICC Rules reads as follows: Conservatory and Interim Measures 1. Unless the parties have otherwise agreed, as soon as the file has been transmitted to it, the Arbitral Tribunal may, at the request of a party, order any interim or conservatory measure it deems appropriate. The Arbitral Tribunal may make the granting of any such measure subject to appropriate security being furnished by the requesting party. Any such measure shall take the form of an order, giving reasons, or of an Award, as the Arbitral Tribunal considers appropriate. 2. Before the file is transmitted to the Arbitral Tribunal, and in appropriate circumstances even thereafter, the parties may apply to any competent judicial authority for interim or conservatory measures. The application of a party to a judicial authority for such measures or for the implementation of any such measures ordered by an Arbitral Tribunal shall not be deemed to be an infringement or a waiver of the arbitration agreement and shall not affect the relevant powers reserved to the Arbitral Tribunal. Any such application and any measures taken by the judicial authority must be notified without delay to the Secretariat. The Secretariat shall inform the Arbitral Tribunal thereof. 34. Thus Article 23 of the ICC rules permits parties to apply to a competent judicial authority for interim and conservatory measures. Therefore, in such cases an application can be made under Section 9 of the said Act. 35. Lastly it must be stated that the said Act does not appear to be a well drafted legislation. Therefore the High Courts of Orissa, Bombay, Madras, Delhi and Calcutta cannot be faulted for interpreting it in the manner indicated above. However, in our view a proper and conjoint reading of all the provisions indicates that Part I is to apply also to international commercial arbitrations which take place out of India, unless the parties by agreement, express or implied exclude it or any of its provisions. Such an interpretation does not lead to any conflict between any of the provisions of the said Act. On this interpretation there is no lacunae in the said Act. This interpretation also does not leave a party remedyless. Thus such an interpretation has to be preferred to the one adopted by the High Courts of Orissa, Bombay, Madras, Delhi and Calcutta. It will therefore have to be held that the contrary view taken by these High Courts is not good law. | 0[ds]It must be borne in mind that the very object of the Arbitration and Conciliation Act of 1996, was to establish a uniform legal framework for the fair and efficient settlement of disputes arising in international commercial arbitration. The conventional way of interpreting a statute is to seek the intention of its makers. If a statutory provision is open to more than one Interpretation then the Court has to choose that Interpretation which represents the true intention of the legislature.It is in such a situation the Courts duty to expound arises with a caution that the Court should not try to legislate. While examining a particular provision of a statute to find outwhether the jurisdiction of a Court is ousted or not,the principle of universal application is that ordinarily the jurisdiction may not be ousted unless the very statutory provision explicitly indicates or even by inferential conclusion the Court arrives at the same when such a conclusion is the only conclusion26. Mr. Sen had also submitted that Part II, which deals with enforcement of foreign awards does not contain any provision similar to Section 9 or Section 17. As indicated earlier Mr. Sen had submitted that this indicated the intention of Legislature not to apply Sections 9 and 17 to arbitrations, like the present, which are taking place in a foreign country. The said Act is one consolidated and integrated ActA domestic award has to be enforced under the provisions of Civil Procedure Code. All that Section 36 provides is that an enforcement of a domestic award is to take place after the time to make an application to set aside the award has expired or such an application has been refused. Section 9 does suggest that once an award is made an application for interim measure can only be made if the award is a domestic award as defined in Section 2(7) of the said Act. Thus where the Legislature wanted to restrict the applicability of Section 9 it has done so specifically29. We see no substance in the submission that there would be unnecessary interference by courts in arbitral proceedings. Section 5 provides that no judicial authority shall intervene except where so provided. Section 9 does not permit any or all applications. It only permits applications for interim measures mentioned in clauses (i) and (ii) thereof. Thus there cannot be applications under Section 9 for stay of arbitral proceedings or to challenge the existence or validity of arbitration agreements or the jurisdiction of the arbitral tribunal. All such challenges would have to be made before the arbitral tribunal under the said Act30. Mr. Sen had also submitted that the term arbitral award includes an interim award. He had submitted that it would be open for the arbitral tribunal to pass interim awards and those interim awards could be enforced in India under Part II. However, there is a difference between an interim award and an interim order. Undoubtedly, the arbitral tribunal could pass an interim award. But an interim order or directions passed by the arbitral tribunal would not be enforceable in India. Thus even in respect of arbitrations covered by Part II a party would be precluded from getting any interim relief. In any event, on Mr. Sens interpretation, an award passed in arbitral proceedings held in a non-convention country could not be enforced. Thus such a partly would be left completely remediless32. To conclude we hold that the provisions of Part I would apply to all arbitrations and to all proceedings relating thereto. Where such arbitration is held in India the provisions of Part I would compulsory apply and parties are free to deviate only to the extent permitted by the derogable provisions of Part I. In cases of international commercial arbitrations held out of India provisions of Part I would apply unless the parties by agreement, express or implied, exclude all or any of its provisions. In that case the laws or rules chosen by the parties would prevail. Any provision, in Part I, which is contrary to or excluded by that law or rules will not apply33. Faced with this situation Mr. Sen submits that, in this case the parties had agreed that the arbitration be as per the rules of ICC. He submits that thus by necessary implication Section 9 would not apply. In our view in such cases the question would be whether Section 9 gets excluded by the ICC Rules of Arbitration34. Thus Article 23 of the ICC rules permits parties to apply to a competent judicial authority for interim and conservatory measures. Therefore, in such cases an application can be made under Section 9 of the said Act35. Lastly it must be stated that the said Act does not appear to be a well drafted legislation. Therefore the High Courts of Orissa, Bombay, Madras, Delhi and Calcutta cannot be faulted for interpreting it in the manner indicated above. However, in our view a proper and conjoint reading of all the provisions indicates that Part I is to apply also to international commercial arbitrations which take place out of India, unless the parties by agreement, express or implied exclude it or any of its provisions. Such an interpretation does not lead to any conflict between any of the provisions of the said Act. On this interpretation there is no lacunae in the said Act. This interpretation also does not leave a party remedyless. Thus such an interpretation has to be preferred to the one adopted by the High Courts of Orissa, Bombay, Madras, Delhi and Calcutta. It will therefore have to be held that the contrary view taken by these High Courts is not good law. | 0 | 7,261 | 1,025 | ### Instruction:
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to be decrees. A domestic award has to be enforced under the provisions of Civil Procedure Code. All that Section 36 provides is that an enforcement of a domestic award is to take place after the time to make an application to set aside the award has expired or such an application has been refused. Section 9 does suggest that once an award is made an application for interim measure can only be made if the award is a domestic award as defined in Section 2(7) of the said Act. Thus where the Legislature wanted to restrict the applicability of Section 9 it has done so specifically. 29. We see no substance in the submission that there would be unnecessary interference by courts in arbitral proceedings. Section 5 provides that no judicial authority shall intervene except where so provided. Section 9 does not permit any or all applications. It only permits applications for interim measures mentioned in clauses (i) and (ii) thereof. Thus there cannot be applications under Section 9 for stay of arbitral proceedings or to challenge the existence or validity of arbitration agreements or the jurisdiction of the arbitral tribunal. All such challenges would have to be made before the arbitral tribunal under the said Act. 30. Mr. Sen had also submitted that the term arbitral award includes an interim award. He had submitted that it would be open for the arbitral tribunal to pass interim awards and those interim awards could be enforced in India under Part II. However, there is a difference between an interim award and an interim order. Undoubtedly, the arbitral tribunal could pass an interim award. But an interim order or directions passed by the arbitral tribunal would not be enforceable in India. Thus even in respect of arbitrations covered by Part II a party would be precluded from getting any interim relief. In any event, on Mr. Sens interpretation, an award passed in arbitral proceedings held in a non-convention country could not be enforced. Thus such a partly would be left completely remediless. 31. If a party cannot secure, before or during the pendency of the arbitral proceedings, an interim order in respects of items provided in Section 9(i) & (ii) the result may be that the arbitration proceedings may themselves get frustrated e.g. by non appointment of a guardian for a minor or person of unsound mind or the subject matter of the arbitration agreement not being preserved. This could never have been the intention of the Legislature. 32. To conclude we hold that the provisions of Part I would apply to all arbitrations and to all proceedings relating thereto. Where such arbitration is held in India the provisions of Part I would compulsory apply and parties are free to deviate only to the extent permitted by the derogable provisions of Part I. In cases of international commercial arbitrations held out of India provisions of Part I would apply unless the parties by agreement, express or implied, exclude all or any of its provisions. In that case the laws or rules chosen by the parties would prevail. Any provision, in Part I, which is contrary to or excluded by that law or rules will not apply. 33. Faced with this situation Mr. Sen submits that, in this case the parties had agreed that the arbitration be as per the rules of ICC. He submits that thus by necessary implication Section 9 would not apply. In our view in such cases the question would be whether Section 9 gets excluded by the ICC Rules of Arbitration. Article 23 of ICC Rules reads as follows: Conservatory and Interim Measures 1. Unless the parties have otherwise agreed, as soon as the file has been transmitted to it, the Arbitral Tribunal may, at the request of a party, order any interim or conservatory measure it deems appropriate. The Arbitral Tribunal may make the granting of any such measure subject to appropriate security being furnished by the requesting party. Any such measure shall take the form of an order, giving reasons, or of an Award, as the Arbitral Tribunal considers appropriate. 2. Before the file is transmitted to the Arbitral Tribunal, and in appropriate circumstances even thereafter, the parties may apply to any competent judicial authority for interim or conservatory measures. The application of a party to a judicial authority for such measures or for the implementation of any such measures ordered by an Arbitral Tribunal shall not be deemed to be an infringement or a waiver of the arbitration agreement and shall not affect the relevant powers reserved to the Arbitral Tribunal. Any such application and any measures taken by the judicial authority must be notified without delay to the Secretariat. The Secretariat shall inform the Arbitral Tribunal thereof. 34. Thus Article 23 of the ICC rules permits parties to apply to a competent judicial authority for interim and conservatory measures. Therefore, in such cases an application can be made under Section 9 of the said Act. 35. Lastly it must be stated that the said Act does not appear to be a well drafted legislation. Therefore the High Courts of Orissa, Bombay, Madras, Delhi and Calcutta cannot be faulted for interpreting it in the manner indicated above. However, in our view a proper and conjoint reading of all the provisions indicates that Part I is to apply also to international commercial arbitrations which take place out of India, unless the parties by agreement, express or implied exclude it or any of its provisions. Such an interpretation does not lead to any conflict between any of the provisions of the said Act. On this interpretation there is no lacunae in the said Act. This interpretation also does not leave a party remedyless. Thus such an interpretation has to be preferred to the one adopted by the High Courts of Orissa, Bombay, Madras, Delhi and Calcutta. It will therefore have to be held that the contrary view taken by these High Courts is not good law.
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It must be borne in mind that the very object of the Arbitration and Conciliation Act of 1996, was to establish a uniform legal framework for the fair and efficient settlement of disputes arising in international commercial arbitration. The conventional way of interpreting a statute is to seek the intention of its makers. If a statutory provision is open to more than one Interpretation then the Court has to choose that Interpretation which represents the true intention of the legislature.It is in such a situation the Courts duty to expound arises with a caution that the Court should not try to legislate. While examining a particular provision of a statute to find outwhether the jurisdiction of a Court is ousted or not,the principle of universal application is that ordinarily the jurisdiction may not be ousted unless the very statutory provision explicitly indicates or even by inferential conclusion the Court arrives at the same when such a conclusion is the only conclusion26. Mr. Sen had also submitted that Part II, which deals with enforcement of foreign awards does not contain any provision similar to Section 9 or Section 17. As indicated earlier Mr. Sen had submitted that this indicated the intention of Legislature not to apply Sections 9 and 17 to arbitrations, like the present, which are taking place in a foreign country. The said Act is one consolidated and integrated ActA domestic award has to be enforced under the provisions of Civil Procedure Code. All that Section 36 provides is that an enforcement of a domestic award is to take place after the time to make an application to set aside the award has expired or such an application has been refused. Section 9 does suggest that once an award is made an application for interim measure can only be made if the award is a domestic award as defined in Section 2(7) of the said Act. Thus where the Legislature wanted to restrict the applicability of Section 9 it has done so specifically29. We see no substance in the submission that there would be unnecessary interference by courts in arbitral proceedings. Section 5 provides that no judicial authority shall intervene except where so provided. Section 9 does not permit any or all applications. It only permits applications for interim measures mentioned in clauses (i) and (ii) thereof. Thus there cannot be applications under Section 9 for stay of arbitral proceedings or to challenge the existence or validity of arbitration agreements or the jurisdiction of the arbitral tribunal. All such challenges would have to be made before the arbitral tribunal under the said Act30. Mr. Sen had also submitted that the term arbitral award includes an interim award. He had submitted that it would be open for the arbitral tribunal to pass interim awards and those interim awards could be enforced in India under Part II. However, there is a difference between an interim award and an interim order. Undoubtedly, the arbitral tribunal could pass an interim award. But an interim order or directions passed by the arbitral tribunal would not be enforceable in India. Thus even in respect of arbitrations covered by Part II a party would be precluded from getting any interim relief. In any event, on Mr. Sens interpretation, an award passed in arbitral proceedings held in a non-convention country could not be enforced. Thus such a partly would be left completely remediless32. To conclude we hold that the provisions of Part I would apply to all arbitrations and to all proceedings relating thereto. Where such arbitration is held in India the provisions of Part I would compulsory apply and parties are free to deviate only to the extent permitted by the derogable provisions of Part I. In cases of international commercial arbitrations held out of India provisions of Part I would apply unless the parties by agreement, express or implied, exclude all or any of its provisions. In that case the laws or rules chosen by the parties would prevail. Any provision, in Part I, which is contrary to or excluded by that law or rules will not apply33. Faced with this situation Mr. Sen submits that, in this case the parties had agreed that the arbitration be as per the rules of ICC. He submits that thus by necessary implication Section 9 would not apply. In our view in such cases the question would be whether Section 9 gets excluded by the ICC Rules of Arbitration34. Thus Article 23 of the ICC rules permits parties to apply to a competent judicial authority for interim and conservatory measures. Therefore, in such cases an application can be made under Section 9 of the said Act35. Lastly it must be stated that the said Act does not appear to be a well drafted legislation. Therefore the High Courts of Orissa, Bombay, Madras, Delhi and Calcutta cannot be faulted for interpreting it in the manner indicated above. However, in our view a proper and conjoint reading of all the provisions indicates that Part I is to apply also to international commercial arbitrations which take place out of India, unless the parties by agreement, express or implied exclude it or any of its provisions. Such an interpretation does not lead to any conflict between any of the provisions of the said Act. On this interpretation there is no lacunae in the said Act. This interpretation also does not leave a party remedyless. Thus such an interpretation has to be preferred to the one adopted by the High Courts of Orissa, Bombay, Madras, Delhi and Calcutta. It will therefore have to be held that the contrary view taken by these High Courts is not good law.
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Shree Krishna Polyster Limited Vs. Deputy Commissioner of Income-Tax | have income that may be classified under the different heads as set out in section 14 of the Income-tax Act. Need we emphasise that the mode and manner in which the income is derived helps in determining under which head the income received by the assessee would fall. The facts which have been found by the Tribunal lead to the conclusion that the interest that the assessee earned from short-term investment of surplus money received in public issue did not spring or emanate from the business activity of the assessee. The interest income in respect of the surplus money not required for business immediately and deposited in banks as idle money, in our opinion, would be assessable as income from other sources" in the facts and circumstances of the present case.5.The Rajasthan High Court in the case of CIT v. Rajasthan Land Development Corporation 1995 (211) ITR 597 noticed the following principles regarding the interest income (page 603) :"(i) interest on fixed deposits and other deposits before the commencement of the business is income from other sources.(ii) income from interest on deposits of surplus money during the construction period is also to be considered/treated as income from other sources.(iii) interest income in respect of surplus money, not required for business and deposited in bank or person, as idle money, for safe keeping, would be assessable as income from other sources. If the income from interest is from a fund which has been brought as surplus capital, it would be assessable as income from other sources.(iv) in respect of investment of surplus funds there is divergence of opinion between different High Courts and this court in the case of Murali Investment Co. held that if the surplus funds are invested instead of keeping them idle, the income by way of interest should be treated as income from other sources.(v) if the surplus funds emerge out of business carried on by the assessee which is regularly carried on by the assessee and then with the intention to carry on the business of lending of money or money-lending the loan is advanced, the income therefrom would be income from business. The intention has to be gathered with reference to all the activities of advancing money which should be permitted by the objects of the company and also by the resolution of the board of directors to carry on the business of money-lending or lending of money."6.The Madhya Pradesh High Court in the case of Madhya Pradesh State Industries Corporation Ltd. v. CIT 1968 (69) ITR 824 held that the assessee-company was not a banking company and the deposit of surplus share money in the bank and the interest earned thereon was not in the ordinary course of business and it was merely a transaction relating to its share capital and not an act in the course of business and, accordingly, the interest earned on the deposits made by the assessee cannot be regarded as income under the head "Profits and gains of business" but has to be treated as "Income from other sources.7.In Tuticorin Alkali Chemicals and Fertilizers Ltd. v. CIT 1997 (227) ITR 172 , the three-judge Bench of the Supreme Court held that the surplus funds in short-term deposits in order to earn interest in a company that has not commenced business will be chargeable under section 56. In other words, such income cannot be charged under the head "Profits and gains of business".8.In Tamil Nadu Dairy Development Corporation Ltd. 1995 (216) ITR 535, the facts before the Madras High Court related to the funds which were acquired from the business activity and in that backdrop it was held that the interest accrued on short-term deposit was business income.9.Similarly, in the case of Snam Progetti S.P.A. 1981 (132) ITR 70 , before the Delhi High Court, the interest income was earned from the funds received from business activity and it was held that the income from interest from bank deposits is business income for the purpose of set-off. Tamil Nadu Dairy Development Corporation Ltd. 1995 (216) ITR 535 (Mad) and Snam Progetti S.P.A. 1981 (132) ITR 70 (Delhi) do not apply to the facts of the present case.10.In Paramount Premises P. Ltd. 1991 (190) ITR 259 , the question before the Division Bench of this court was whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the interest on temporary loan from surplus funds of Rs.14,686 was business receipt and cannot be assessed as income from other sources during the assessment year 1978-79. The finding of fact recorded by the Tribunal was that income from interest was in the nature of business income and did not arise out of independent activity and, accordingly this court upheld the view of the Tribunal that the interest income was business income of the assessee.12.Learned counsel for the appellant then contended that the surplus money from the public issue was a working capital. We are afraid this was not the case of the assessee either before the Assessing Officer or before the Commissioner of Income-tax (Appeals). It was not the case before the Income-tax Appellate Tribunal nor is it the case even in the memo of appeal before us. We notice the said contention and reject it accordingly.12.From what we have discussed above, in the facts and circumstances of the present case, it cannot be said that the surplus funds available with the assessee acquired in public issue were funds acquired from the business activity and when it is not so, the interest earned thereon in short-term deposit cannot be treated as business income and has to be treated as income from other sources.13.We, accordingly, hold that the income of interest earned by the assessee by investing surplus money received in public issue in bank deposits for a period of 45 days was assessable as income under the head "Income from other sources". The finding recorded by the Tribunal in this regard is upheld. | 0[ds]9.Similarly, in the case of Snam Progetti S.P.A. 1981 (132) ITR 70 , before the Delhi High Court, the interest income was earned from the funds received from business activity and it was held that the income from interest from bank deposits is business income for the purpose ofTamil Nadu Dairy Development Corporation Ltd. 1995 (216) ITR 535 (Mad) and Snam Progetti S.P.A. 1981 (132) ITR 70 (Delhi) do not apply to the facts of the presentTuticorin Alkali Chemicals and Fertilizers Ltd. v. CIT 1997 (227) ITR 172 , theBench of the Supreme Court held that the surplus funds indeposits in order to earn interest in a company that has not commenced business will be chargeable under section 56. In other words, such income cannot be charged under the head "Profits and gains ofwhat we have discussed above, in the facts and circumstances of the present case, it cannot be said that the surplus funds available with the assessee acquired in public issue were funds acquired from the business activity and when it is not so, the interest earned thereon indeposit cannot be treated as business income and has to be treated as income from other sources.13.We, accordingly, hold that the income of interest earned by the assessee by investing surplus money received in public issue in bank deposits for a period of 45 days was assessable as income under the head "Income from other sources". The finding recorded by the Tribunal in this regard is upheld. | 0 | 1,410 | 280 | ### 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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have income that may be classified under the different heads as set out in section 14 of the Income-tax Act. Need we emphasise that the mode and manner in which the income is derived helps in determining under which head the income received by the assessee would fall. The facts which have been found by the Tribunal lead to the conclusion that the interest that the assessee earned from short-term investment of surplus money received in public issue did not spring or emanate from the business activity of the assessee. The interest income in respect of the surplus money not required for business immediately and deposited in banks as idle money, in our opinion, would be assessable as income from other sources" in the facts and circumstances of the present case.5.The Rajasthan High Court in the case of CIT v. Rajasthan Land Development Corporation 1995 (211) ITR 597 noticed the following principles regarding the interest income (page 603) :"(i) interest on fixed deposits and other deposits before the commencement of the business is income from other sources.(ii) income from interest on deposits of surplus money during the construction period is also to be considered/treated as income from other sources.(iii) interest income in respect of surplus money, not required for business and deposited in bank or person, as idle money, for safe keeping, would be assessable as income from other sources. If the income from interest is from a fund which has been brought as surplus capital, it would be assessable as income from other sources.(iv) in respect of investment of surplus funds there is divergence of opinion between different High Courts and this court in the case of Murali Investment Co. held that if the surplus funds are invested instead of keeping them idle, the income by way of interest should be treated as income from other sources.(v) if the surplus funds emerge out of business carried on by the assessee which is regularly carried on by the assessee and then with the intention to carry on the business of lending of money or money-lending the loan is advanced, the income therefrom would be income from business. The intention has to be gathered with reference to all the activities of advancing money which should be permitted by the objects of the company and also by the resolution of the board of directors to carry on the business of money-lending or lending of money."6.The Madhya Pradesh High Court in the case of Madhya Pradesh State Industries Corporation Ltd. v. CIT 1968 (69) ITR 824 held that the assessee-company was not a banking company and the deposit of surplus share money in the bank and the interest earned thereon was not in the ordinary course of business and it was merely a transaction relating to its share capital and not an act in the course of business and, accordingly, the interest earned on the deposits made by the assessee cannot be regarded as income under the head "Profits and gains of business" but has to be treated as "Income from other sources.7.In Tuticorin Alkali Chemicals and Fertilizers Ltd. v. CIT 1997 (227) ITR 172 , the three-judge Bench of the Supreme Court held that the surplus funds in short-term deposits in order to earn interest in a company that has not commenced business will be chargeable under section 56. In other words, such income cannot be charged under the head "Profits and gains of business".8.In Tamil Nadu Dairy Development Corporation Ltd. 1995 (216) ITR 535, the facts before the Madras High Court related to the funds which were acquired from the business activity and in that backdrop it was held that the interest accrued on short-term deposit was business income.9.Similarly, in the case of Snam Progetti S.P.A. 1981 (132) ITR 70 , before the Delhi High Court, the interest income was earned from the funds received from business activity and it was held that the income from interest from bank deposits is business income for the purpose of set-off. Tamil Nadu Dairy Development Corporation Ltd. 1995 (216) ITR 535 (Mad) and Snam Progetti S.P.A. 1981 (132) ITR 70 (Delhi) do not apply to the facts of the present case.10.In Paramount Premises P. Ltd. 1991 (190) ITR 259 , the question before the Division Bench of this court was whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the interest on temporary loan from surplus funds of Rs.14,686 was business receipt and cannot be assessed as income from other sources during the assessment year 1978-79. The finding of fact recorded by the Tribunal was that income from interest was in the nature of business income and did not arise out of independent activity and, accordingly this court upheld the view of the Tribunal that the interest income was business income of the assessee.12.Learned counsel for the appellant then contended that the surplus money from the public issue was a working capital. We are afraid this was not the case of the assessee either before the Assessing Officer or before the Commissioner of Income-tax (Appeals). It was not the case before the Income-tax Appellate Tribunal nor is it the case even in the memo of appeal before us. We notice the said contention and reject it accordingly.12.From what we have discussed above, in the facts and circumstances of the present case, it cannot be said that the surplus funds available with the assessee acquired in public issue were funds acquired from the business activity and when it is not so, the interest earned thereon in short-term deposit cannot be treated as business income and has to be treated as income from other sources.13.We, accordingly, hold that the income of interest earned by the assessee by investing surplus money received in public issue in bank deposits for a period of 45 days was assessable as income under the head "Income from other sources". The finding recorded by the Tribunal in this regard is upheld.
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9.Similarly, in the case of Snam Progetti S.P.A. 1981 (132) ITR 70 , before the Delhi High Court, the interest income was earned from the funds received from business activity and it was held that the income from interest from bank deposits is business income for the purpose ofTamil Nadu Dairy Development Corporation Ltd. 1995 (216) ITR 535 (Mad) and Snam Progetti S.P.A. 1981 (132) ITR 70 (Delhi) do not apply to the facts of the presentTuticorin Alkali Chemicals and Fertilizers Ltd. v. CIT 1997 (227) ITR 172 , theBench of the Supreme Court held that the surplus funds indeposits in order to earn interest in a company that has not commenced business will be chargeable under section 56. In other words, such income cannot be charged under the head "Profits and gains ofwhat we have discussed above, in the facts and circumstances of the present case, it cannot be said that the surplus funds available with the assessee acquired in public issue were funds acquired from the business activity and when it is not so, the interest earned thereon indeposit cannot be treated as business income and has to be treated as income from other sources.13.We, accordingly, hold that the income of interest earned by the assessee by investing surplus money received in public issue in bank deposits for a period of 45 days was assessable as income under the head "Income from other sources". The finding recorded by the Tribunal in this regard is upheld.
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G.S. Nagmoti Vs. State of Mysore | Governor may impose any of the penalties specified in Rule 3 on any Government servant.(2) Without prejudice to the provision of sub-rule (1), but subject to the provisions of sib-rule (3) :(a) the High Court of Mysore may impose on Government servants belonging to Mysore judicial Sevice holding posts inferior to the post of a District judge, any of the penalties specified in clauses (ii), (iii) and (iv) of Rule 3;(b) .. .. ..(3) Notwithstanding anything contained in this rule, no penalty specified in clauses (v) to (viii) of Rule 3 shall be imposed by any authority lower than the Appointing Authority."Rule 11."Procedure for imposing major penalties. - (1) Without prejudice to the provisions of any law applicable to the Government servant, no order imposing on the Government servant any of the penalties specified in clauses (v) to (viii) of Rule 8 shall be passed except after an inquiry held, as far as may be, in the matter hereinafter provided.(2) The Disciplinary Authority or any authority specially empowered by it in this behalf (hereinafter in this rule referred to as "specially empowered authority") shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be held. Such charges, together with a statement of the allegations on which they are based, shall be communicated in writing to the Government servant, and he shall be required to submit, within such time as may be specified by the Disciplinary Authority or any authority specially empowered by it in this behalf, a written statement of his defence and also to state whether he desires to be heard in person.(3) The Government servant shall, for the purpose of preparing his defence, be permitted to inspect and take extracts from such official records as he may specify, provided that such permission may be refused if, for reasons to be recorded in writing, in the opinion of the Disciplinary Authority or specially empowered authority such records are not relevant for the purpose or it is against the public interest to allow him access thereto.(4) .. .. ..(5) .. .. ..(6) .. .. ..(7) At the conclusion of the inquiry the Inquiring Authority shall prepare a report of the inquiry, record its findings on each of the charges together with the reasons therefor. If in the opinion of such authority the proceedings of the inquiry establish charges different from those originally framed, it may record findings on such charges provided that findings on such charges shall not be recorded unless the Government servant has admitted the facts constituting them or has had no opportunity of defending himself against them.(8) .. .. ..(9) .. .. ..(10) (i) If the Disciplinary Authority, having regard to its findings on the charges, is of the opinion that any of the penalties specified in clauses (v) to (viii) of Rule 8 should be imposed, it shall -(a) furnish to the Government servant a copy of the report of the Inquiring Authority and, where the Disciplinary Authority is not the Inquiring Authority a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority; and(b) give him a notice stating the action proposed to be taken in regard to him and calling upon him to submit within a specified time such representation as lie may wish to make against the proposed action.(ii) (a) In very case in which it is necessary to consult the Commission, the record of the inquiry, together with a copy of the notice given under clause (i) and the representation made in response to such notice, if any, shall be forwarded by the Disciplinary Authority to the Commission for its advice.(b) On receipt of the advice of the Commission, the Disciplinary Authority shall consider the representation, if any, made by the Government servant as aforesaid, and the advice given by the Commission and determine what penalty, if any, should be imposed on the Government servant and pass appropriate orders on the case.(iii) In any case in which it is not necessary to consult the Commission, the Disciplinary Authority shall consider the representation, if any, made by the Government servant in response to the notice under clause (i) and determine what. penalty, if any, should be imposed on the Government servant and pass appropriate orders on the case."4. In The State of West Bengal v. Nrinpendra Nath Baschi it was held by this Court that the word control as used in Article 235 includes disciplinary control or jurisdiction over District judges. By that Article the High Court is made the sole custodian of the control over the judiciary. Control, therefore, is not merely the power to arrange the day to clay wording of the court but contemplates disciplinary jurisdiction over the presiding judge. The question that fell for consideration in that case was whether the enquiry ordered by the Government and conducted by an Executive Officer of the Government against a District and Sessions judge contravened the provisions of Article 235 of the Constitution which vested in the High Court the control over the District Court and the Courts subordinate thereto. In our opinion the principle of this decision applies to the present case. It was, however, contended on behalf of the respondent that by its letter, dated October 23, 1963 the High Court had itself requested the Government to appoint Mr. Justice K. S. Hegde as Specially Empowered Authority to hold departmental enquiry into the conduct of the appellant. It was said that the provisions of Article 235 of the Constitution have been substantially complied with. A copy of the letter of the High Court is Enclosure 1 to the affidavit filed by the respondent in this Court. It is not possible for us to examine the validity of this argument because the writ petition of the appellant was dismissed in limine by the High Court and we have not the advantage of the Judgment of the High Court on the disputed facts of this case. | 1[ds]4. In The State of West Bengal v. Nrinpendra Nath Baschi it was held by this Court that the word control as used in Article 235 includes disciplinary control or jurisdiction over District judges. By that Article the High Court is made the sole custodian of the control over the judiciary. Control, therefore, is not merely the power to arrange the day to clay wording of the court but contemplates disciplinary jurisdiction over the presiding judge. The question that fell for consideration in that case was whether the enquiry ordered by the Government and conducted by an Executive Officer of the Government against a District and Sessions judge contravened the provisions of Article 235 of the Constitution which vested in the High Court the control over the District Court and the Courts subordinate thereto. In our opinion the principle of this decision applies to the presentcopy of the letter of the High Court is Enclosure 1 to the affidavit filed by the respondent in this Court. It is not possible for us to examine the validity of this argument because the writ petition of the appellant was dismissed in limine by the High Court and we have not the advantage of the Judgment of the High Court on the disputed facts of this case. | 1 | 2,282 | 227 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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Governor may impose any of the penalties specified in Rule 3 on any Government servant.(2) Without prejudice to the provision of sub-rule (1), but subject to the provisions of sib-rule (3) :(a) the High Court of Mysore may impose on Government servants belonging to Mysore judicial Sevice holding posts inferior to the post of a District judge, any of the penalties specified in clauses (ii), (iii) and (iv) of Rule 3;(b) .. .. ..(3) Notwithstanding anything contained in this rule, no penalty specified in clauses (v) to (viii) of Rule 3 shall be imposed by any authority lower than the Appointing Authority."Rule 11."Procedure for imposing major penalties. - (1) Without prejudice to the provisions of any law applicable to the Government servant, no order imposing on the Government servant any of the penalties specified in clauses (v) to (viii) of Rule 8 shall be passed except after an inquiry held, as far as may be, in the matter hereinafter provided.(2) The Disciplinary Authority or any authority specially empowered by it in this behalf (hereinafter in this rule referred to as "specially empowered authority") shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be held. Such charges, together with a statement of the allegations on which they are based, shall be communicated in writing to the Government servant, and he shall be required to submit, within such time as may be specified by the Disciplinary Authority or any authority specially empowered by it in this behalf, a written statement of his defence and also to state whether he desires to be heard in person.(3) The Government servant shall, for the purpose of preparing his defence, be permitted to inspect and take extracts from such official records as he may specify, provided that such permission may be refused if, for reasons to be recorded in writing, in the opinion of the Disciplinary Authority or specially empowered authority such records are not relevant for the purpose or it is against the public interest to allow him access thereto.(4) .. .. ..(5) .. .. ..(6) .. .. ..(7) At the conclusion of the inquiry the Inquiring Authority shall prepare a report of the inquiry, record its findings on each of the charges together with the reasons therefor. If in the opinion of such authority the proceedings of the inquiry establish charges different from those originally framed, it may record findings on such charges provided that findings on such charges shall not be recorded unless the Government servant has admitted the facts constituting them or has had no opportunity of defending himself against them.(8) .. .. ..(9) .. .. ..(10) (i) If the Disciplinary Authority, having regard to its findings on the charges, is of the opinion that any of the penalties specified in clauses (v) to (viii) of Rule 8 should be imposed, it shall -(a) furnish to the Government servant a copy of the report of the Inquiring Authority and, where the Disciplinary Authority is not the Inquiring Authority a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority; and(b) give him a notice stating the action proposed to be taken in regard to him and calling upon him to submit within a specified time such representation as lie may wish to make against the proposed action.(ii) (a) In very case in which it is necessary to consult the Commission, the record of the inquiry, together with a copy of the notice given under clause (i) and the representation made in response to such notice, if any, shall be forwarded by the Disciplinary Authority to the Commission for its advice.(b) On receipt of the advice of the Commission, the Disciplinary Authority shall consider the representation, if any, made by the Government servant as aforesaid, and the advice given by the Commission and determine what penalty, if any, should be imposed on the Government servant and pass appropriate orders on the case.(iii) In any case in which it is not necessary to consult the Commission, the Disciplinary Authority shall consider the representation, if any, made by the Government servant in response to the notice under clause (i) and determine what. penalty, if any, should be imposed on the Government servant and pass appropriate orders on the case."4. In The State of West Bengal v. Nrinpendra Nath Baschi it was held by this Court that the word control as used in Article 235 includes disciplinary control or jurisdiction over District judges. By that Article the High Court is made the sole custodian of the control over the judiciary. Control, therefore, is not merely the power to arrange the day to clay wording of the court but contemplates disciplinary jurisdiction over the presiding judge. The question that fell for consideration in that case was whether the enquiry ordered by the Government and conducted by an Executive Officer of the Government against a District and Sessions judge contravened the provisions of Article 235 of the Constitution which vested in the High Court the control over the District Court and the Courts subordinate thereto. In our opinion the principle of this decision applies to the present case. It was, however, contended on behalf of the respondent that by its letter, dated October 23, 1963 the High Court had itself requested the Government to appoint Mr. Justice K. S. Hegde as Specially Empowered Authority to hold departmental enquiry into the conduct of the appellant. It was said that the provisions of Article 235 of the Constitution have been substantially complied with. A copy of the letter of the High Court is Enclosure 1 to the affidavit filed by the respondent in this Court. It is not possible for us to examine the validity of this argument because the writ petition of the appellant was dismissed in limine by the High Court and we have not the advantage of the Judgment of the High Court on the disputed facts of this case.
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### Explanation:
4. In The State of West Bengal v. Nrinpendra Nath Baschi it was held by this Court that the word control as used in Article 235 includes disciplinary control or jurisdiction over District judges. By that Article the High Court is made the sole custodian of the control over the judiciary. Control, therefore, is not merely the power to arrange the day to clay wording of the court but contemplates disciplinary jurisdiction over the presiding judge. The question that fell for consideration in that case was whether the enquiry ordered by the Government and conducted by an Executive Officer of the Government against a District and Sessions judge contravened the provisions of Article 235 of the Constitution which vested in the High Court the control over the District Court and the Courts subordinate thereto. In our opinion the principle of this decision applies to the presentcopy of the letter of the High Court is Enclosure 1 to the affidavit filed by the respondent in this Court. It is not possible for us to examine the validity of this argument because the writ petition of the appellant was dismissed in limine by the High Court and we have not the advantage of the Judgment of the High Court on the disputed facts of this case.
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Gajendra Narain Singh Vs. Johri Mal Prahlad Rai | O. 30 provides : Any person served with summons as a partner under Rule 3 may appear under protest, denying that he is a partner, but such appearance shall not preclude the plaintiff from otherwise serving a summons on the firm and obtaining decree against the firm in default of appearance where no partner has appeared. The rule enables the person served as a partner to appear under protest and to deny that he is a partner of the firm which is sued. Appearance under protest by the person sued renders the service of summons as regards the defendant firm ineffective. The plaintiff may obtain a fresh summons against the firm and serve it in the manner prescribed by O. 30 R. 3 against another person who is alleged to be a partner by the plaintiff or against the person who has the control or management of the partnership business. A decree against the defendant firm so obtained may with leave under O. 21 R. 50 (2) be executed against the firm and also against the person who had been initially served as a partner and who had appeared under protest denying that he was a partner. The plaintiff, however, is not obliged to obtain a fresh summons : he may request the Court to adjudicate upon the plea of denial raised by the person served and appearing under protest. The Court will then proceed to determine the issue raised by that plea. If the Court finds on evidence that the person served was not a partner at the material time, the suit cannot proceed, unless summons is served afresh under R. 3: if the Court holds that he was a partner, service on him will be regarded as good service on the firm and the suit will proceed against the firm. 7. In the present case Singh did not enter appearance under protest. He filed an appearance in his individual name in the suit, and obtained an adjournment from the Court to enable him to file his written statement. The appearance so filed must be deemed to be on behalf of the firm. At the hearing of the summons for directions he contended that he was not a partner of the defendant firm and applied for leave to withdraw his appearance which was filed without protest. Unless the Court permitted Singh to withdraw the appearance initially filed, it continued to be an appearance under R. 6 of O. XXX on behalf of the firm. We are not concerned in this case to decide whether the application of Singh for leave to withdraw his appearance was properly rejected. That question could only be raised in a proceeding adopted by Singh in the proper Court challenging the decision of the City Civil Court and not in the proceeding for execution of the decree. Order 21 R. 50 of the Code of Civil Procedure deals with execution of decrees against firms. By cl. (1) it is provided : Where a decree has been passed against a firm, execution may be granted- (a) against any property of the partnership; (b) against any person who has appeared in his own name under Rule 6 or Rule 7 of Order XXX or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner; (c) against any person who has been individually served as a partner with a summons and has failed to appear. Provided x x x x. Clause (2) provides; Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in sub-rule (1), clauses (b) and (c) as being a partner in the firm, he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such Court may grant such leave, or, where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined. By cl. (3) it is provided : Where the liability of any person has been tried and determined under sub-rule (2), the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. Manifestly relying upon sub-cls. (b) and (c) of sub-r. (1) a plaintiff who has obtained a decree against a firm may execute it against any person who has been individually served with the summons as a partner and has failed to appear and also against any person who has appeared in his own name under R. 6 or R. 7 of O. XXX. Singh being a person who had after being served as a partner appeared under R. 6, the decree of the City Civil Court, Bombay was executable against him. 8. The plaintiffs did undoubtedly make an application for leave to execute the decree against Singh on the footing that he was a person other than a person referred to in cls. (b) and (c) of sub-r. (1) of R. 50, O. 21, but that proceeding was plainly the result of an incorrect appreciation of the true position in law. On that account his right under O. 21 R. 50 (1) (b) was not lost. The plaintiffs were entitled to abandon the application for leave under sub-r. (2) and the execute the decree under sub-r. (1). 9. The record of the City Civil Court, Bombay, tendered before the District Judge clearly establishes that Singh who was served as a partner of the defendant firm filed an appearance under R. 6, O. 30 of the Code of Civil Procedure, and thereafter his application for withdrawal of appearance was rejected and the suit was decreed against the firm. This decree against the firm was, by virtue of sub-r. (1) cl. (b) of R. 50, O. 21, liable to be executed against Singh. | 0[ds]5. It is not possible to say whether the summons was accompanied by the notice contemplated by R. 5, but it is clear by the express words of the rule that in default of such notice the person served shall be deemed to be served as a partner. Singh has in his affidavit sworn in the suit, and also in his testimony at the hearing in the execution proceeding admitted that he was served with a summons in the suit, and Mr. Viswanatha Sastri appearing for Singh has fairly not challenged the finding that Singh must be deemed to have been served as a partner of the defendant firmThe rule enables the person served as a partner to appear under protest and to deny that he is a partner of the firm which is sued. Appearance under protest by the person sued renders the service of summons as regards the defendant firm ineffective. The plaintiff may obtain a fresh summons against the firm and serve it in the manner prescribed by O. 30 R. 3 against another person who is alleged to be a partner by the plaintiff or against the person who has the control or management of the partnership business. A decree against the defendant firm so obtained may with leave under O. 21 R. 50 (2) be executed against the firm and also against the person who had been initially served as a partner and who had appeared under protest denying that he was a partner. The plaintiff, however, is not obliged to obtain a fresh summons : he may request the Court to adjudicate upon the plea of denial raised by the person served and appearing under protest. The Court will then proceed to determine the issue raised by that plea. If the Court finds on evidence that the person served was not a partner at the material time, the suit cannot proceed, unless summons is served afresh under R. 3: if the Court holds that he was a partner, service on him will be regarded as good service on the firm and the suit will proceed against the firm7. In the present case Singh did not enter appearance under protest. He filed an appearance in his individual name in the suit, and obtained an adjournment from the Court to enable him to file his written statement. The appearance so filed must be deemed to be on behalf of the firm. At the hearing of the summons for directions he contended that he was not a partner of the defendant firm and applied for leave to withdraw his appearance which was filed without protest. Unless the Court permitted Singh to withdraw the appearance initially filed, it continued to be an appearance under R. 6 of O. XXX on behalf of the firm. We are not concerned in this case to decide whether the application of Singh for leave to withdraw his appearance was properly rejected. That question could only be raised in a proceeding adopted by Singh in the proper Court challenging the decision of the City Civil Court and not in the proceeding for execution of the decree. Order 21 R. 50 of the Code of Civil Procedure deals with execution of decrees against firmsManifestly relying upon sub-cls. (b) and (c) of sub-r. (1) a plaintiff who has obtained a decree against a firm may execute it against any person who has been individually served with the summons as a partner and has failed to appear and also against any person who has appeared in his own name under R. 6 or R. 7 of O. XXX. Singh being a person who had after being served as a partner appeared under R. 6, the decree of the City Civil Court, Bombay was executable against him8. The plaintiffs did undoubtedly make an application for leave to execute the decree against Singh on the footing that he was a person other than a person referred to in cls. (b) and (c) of sub-r. (1) of R. 50, O. 21, but that proceeding was plainly the result of an incorrect appreciation of the true position in law. On that account his right under O. 21 R. 50 (1) (b) was not lost. The plaintiffs were entitled to abandon the application for leave under sub-r. (2) and the execute the decree under sub-r. (1)9. The record of the City Civil Court, Bombay, tendered before the District Judge clearly establishes that Singh who was served as a partner of the defendant firm filed an appearance under R. 6, O. 30 of the Code of Civil Procedure, and thereafter his application for withdrawal of appearance was rejected and the suit was decreed against the firm. This decree against the firm was, by virtue of sub-r. (1) cl. (b) of R. 50, O. 21, liable to be executed against Singh. | 0 | 2,442 | 894 | ### 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:
O. 30 provides : Any person served with summons as a partner under Rule 3 may appear under protest, denying that he is a partner, but such appearance shall not preclude the plaintiff from otherwise serving a summons on the firm and obtaining decree against the firm in default of appearance where no partner has appeared. The rule enables the person served as a partner to appear under protest and to deny that he is a partner of the firm which is sued. Appearance under protest by the person sued renders the service of summons as regards the defendant firm ineffective. The plaintiff may obtain a fresh summons against the firm and serve it in the manner prescribed by O. 30 R. 3 against another person who is alleged to be a partner by the plaintiff or against the person who has the control or management of the partnership business. A decree against the defendant firm so obtained may with leave under O. 21 R. 50 (2) be executed against the firm and also against the person who had been initially served as a partner and who had appeared under protest denying that he was a partner. The plaintiff, however, is not obliged to obtain a fresh summons : he may request the Court to adjudicate upon the plea of denial raised by the person served and appearing under protest. The Court will then proceed to determine the issue raised by that plea. If the Court finds on evidence that the person served was not a partner at the material time, the suit cannot proceed, unless summons is served afresh under R. 3: if the Court holds that he was a partner, service on him will be regarded as good service on the firm and the suit will proceed against the firm. 7. In the present case Singh did not enter appearance under protest. He filed an appearance in his individual name in the suit, and obtained an adjournment from the Court to enable him to file his written statement. The appearance so filed must be deemed to be on behalf of the firm. At the hearing of the summons for directions he contended that he was not a partner of the defendant firm and applied for leave to withdraw his appearance which was filed without protest. Unless the Court permitted Singh to withdraw the appearance initially filed, it continued to be an appearance under R. 6 of O. XXX on behalf of the firm. We are not concerned in this case to decide whether the application of Singh for leave to withdraw his appearance was properly rejected. That question could only be raised in a proceeding adopted by Singh in the proper Court challenging the decision of the City Civil Court and not in the proceeding for execution of the decree. Order 21 R. 50 of the Code of Civil Procedure deals with execution of decrees against firms. By cl. (1) it is provided : Where a decree has been passed against a firm, execution may be granted- (a) against any property of the partnership; (b) against any person who has appeared in his own name under Rule 6 or Rule 7 of Order XXX or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner; (c) against any person who has been individually served as a partner with a summons and has failed to appear. Provided x x x x. Clause (2) provides; Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in sub-rule (1), clauses (b) and (c) as being a partner in the firm, he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such Court may grant such leave, or, where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined. By cl. (3) it is provided : Where the liability of any person has been tried and determined under sub-rule (2), the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. Manifestly relying upon sub-cls. (b) and (c) of sub-r. (1) a plaintiff who has obtained a decree against a firm may execute it against any person who has been individually served with the summons as a partner and has failed to appear and also against any person who has appeared in his own name under R. 6 or R. 7 of O. XXX. Singh being a person who had after being served as a partner appeared under R. 6, the decree of the City Civil Court, Bombay was executable against him. 8. The plaintiffs did undoubtedly make an application for leave to execute the decree against Singh on the footing that he was a person other than a person referred to in cls. (b) and (c) of sub-r. (1) of R. 50, O. 21, but that proceeding was plainly the result of an incorrect appreciation of the true position in law. On that account his right under O. 21 R. 50 (1) (b) was not lost. The plaintiffs were entitled to abandon the application for leave under sub-r. (2) and the execute the decree under sub-r. (1). 9. The record of the City Civil Court, Bombay, tendered before the District Judge clearly establishes that Singh who was served as a partner of the defendant firm filed an appearance under R. 6, O. 30 of the Code of Civil Procedure, and thereafter his application for withdrawal of appearance was rejected and the suit was decreed against the firm. This decree against the firm was, by virtue of sub-r. (1) cl. (b) of R. 50, O. 21, liable to be executed against Singh.
### Response:
0
### Explanation:
5. It is not possible to say whether the summons was accompanied by the notice contemplated by R. 5, but it is clear by the express words of the rule that in default of such notice the person served shall be deemed to be served as a partner. Singh has in his affidavit sworn in the suit, and also in his testimony at the hearing in the execution proceeding admitted that he was served with a summons in the suit, and Mr. Viswanatha Sastri appearing for Singh has fairly not challenged the finding that Singh must be deemed to have been served as a partner of the defendant firmThe rule enables the person served as a partner to appear under protest and to deny that he is a partner of the firm which is sued. Appearance under protest by the person sued renders the service of summons as regards the defendant firm ineffective. The plaintiff may obtain a fresh summons against the firm and serve it in the manner prescribed by O. 30 R. 3 against another person who is alleged to be a partner by the plaintiff or against the person who has the control or management of the partnership business. A decree against the defendant firm so obtained may with leave under O. 21 R. 50 (2) be executed against the firm and also against the person who had been initially served as a partner and who had appeared under protest denying that he was a partner. The plaintiff, however, is not obliged to obtain a fresh summons : he may request the Court to adjudicate upon the plea of denial raised by the person served and appearing under protest. The Court will then proceed to determine the issue raised by that plea. If the Court finds on evidence that the person served was not a partner at the material time, the suit cannot proceed, unless summons is served afresh under R. 3: if the Court holds that he was a partner, service on him will be regarded as good service on the firm and the suit will proceed against the firm7. In the present case Singh did not enter appearance under protest. He filed an appearance in his individual name in the suit, and obtained an adjournment from the Court to enable him to file his written statement. The appearance so filed must be deemed to be on behalf of the firm. At the hearing of the summons for directions he contended that he was not a partner of the defendant firm and applied for leave to withdraw his appearance which was filed without protest. Unless the Court permitted Singh to withdraw the appearance initially filed, it continued to be an appearance under R. 6 of O. XXX on behalf of the firm. We are not concerned in this case to decide whether the application of Singh for leave to withdraw his appearance was properly rejected. That question could only be raised in a proceeding adopted by Singh in the proper Court challenging the decision of the City Civil Court and not in the proceeding for execution of the decree. Order 21 R. 50 of the Code of Civil Procedure deals with execution of decrees against firmsManifestly relying upon sub-cls. (b) and (c) of sub-r. (1) a plaintiff who has obtained a decree against a firm may execute it against any person who has been individually served with the summons as a partner and has failed to appear and also against any person who has appeared in his own name under R. 6 or R. 7 of O. XXX. Singh being a person who had after being served as a partner appeared under R. 6, the decree of the City Civil Court, Bombay was executable against him8. The plaintiffs did undoubtedly make an application for leave to execute the decree against Singh on the footing that he was a person other than a person referred to in cls. (b) and (c) of sub-r. (1) of R. 50, O. 21, but that proceeding was plainly the result of an incorrect appreciation of the true position in law. On that account his right under O. 21 R. 50 (1) (b) was not lost. The plaintiffs were entitled to abandon the application for leave under sub-r. (2) and the execute the decree under sub-r. (1)9. The record of the City Civil Court, Bombay, tendered before the District Judge clearly establishes that Singh who was served as a partner of the defendant firm filed an appearance under R. 6, O. 30 of the Code of Civil Procedure, and thereafter his application for withdrawal of appearance was rejected and the suit was decreed against the firm. This decree against the firm was, by virtue of sub-r. (1) cl. (b) of R. 50, O. 21, liable to be executed against Singh.
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Commissioner, Quilon Municipality, Quilon, Andanother Vs. M/S. Harrisons & Crosfield Ltd | assessable profits determined under the Indian Income-tax Act would be higher than those under the Travancore Income-tax Act. As no detailed comparison of the provisions of the Travancore Income-tax Act as in force at the date of the amendment with those of the Indian Income-tax Act was made during the argument, we are not in a position to say whether in fact the assessable profits under the Indian Income-tax Act, would have been larger than those under the Travancore Act at that time. We cannot, however, deny the possibility of the permissible deductions under the Indian Income-tax Act being fewer than those under the Travancore Act as it stood at the date of its repeal. Again, since the amendment introduces a different statute with reference to which assessable profits are to be ascertained it is possible that the amended proviso may enhance the tax liability not only of assessees falling within the first slab but also of assessees falling in the lower slabs.12. Mr. Pai has sought, to demonstrate by reference to actual figures that in respect of certain periods the present assessees liability to pay the tax as ascertained under the amended proviso would be higher than what it would have been under the unamended proviso. These figures are to be found in three statements filed in the High Court by the respondents and marked as Exs. 4, 13 and 23. The statements are identical and we would only refer to the first of them.13. In column 1 of Ex. 4 is mentioned the year of assessment; in the second column the turnover within the Quilon Municipality is set out; in the third column the turnover relating to profits assessable to Travancore Income-tax Act is set out; in the fourth column the turnover in India is set out; in the fifth column income assessable under the Travancore Income-tax Act had it been in force, is set out; in the sixth column income assessed under the Indian Income-tax Act is set out. From these figures income computed as per proviso to R. 18(2) before its amendment has been set out. If X is the figure in col. 5, Y is the figure in col. 3 and Z the figure in col. 2, the amount of income before the amendment of the proviso would then be : x/y x z. We might call it TI (1) (i.e. taxable income (1)). In the last column of the statement the taxable income computed as per the proviso after its amendment is set out. This is arrived at by dividing the income assessed under the Indian Income-tax Act which we will call A by the turnover in lndia which we will call B and multiplying it by the turnover within the Quilon Municipality i. e. Z. The taxable income thus arrived at i. e., AXZ might be called TI (2). It would appear by the comparison of the figures in col. 7 with those in col. 8 that in respect of the periods ending on June 30, 1949; June 30, 1950; June 30, 1951; June 30, 1954 and June 30, 1955 TI (2) is lower than TI(1). But in respect of periods ending on June 30, 1952; June 30, 1953 and June 30, 1952; June 30, 1953 and June 30, 1956 TI(2) is higher than TI(1). Since the Attorney General does not accept the correctness of the figures in columns 2 to 5 we will regard them as merely hypothetical. But even on the basis of these hypothetical figures. it is apparent that by applying the amended proviso the quantum of liability to pay tax on the same turnover with respect to the same period would, in certain cases, be higher than what it would have been by applying the unamended proviso. The burden of tax is thus liable to be increased in certain circumstances.14. We have already pointed out that the amendment of 1956 was to operate as form April, 1950, that is, from a point of time earlier than the repeal of the Travancore Income-tax Act. But then the proviso is given operation subsequent to the commencement of the Constitution, and the provisions of Art. 276 would stand in the way of the legislature which validated it.15. The learned Attorney General relying upon the decision of this Court in Mst. Jadao Bahujis case, (1962) 1 SCR 633 : (AIR 1961 SC 1486 ) contended that the Kerala legislature was competent to give retrospectivity to a validating law and that since the legislature has validated the amendment to the proviso as from April, 1950, the amendment is valid and took effect from that date. The decision upon which he has relied is distinguishable. That was a case in which the Validating Act had validated the imposition of a tax in excess of Rs. 50 not for a period subsequent to March 31, 1939 but for a period prior to that date. The contention of the assessee was that as the Validating Act was passed subsequent to the coming into force of S. 142-A of the Government of India Act, 1935 it was beyond the competence of the provincial legislature. This contention was rejected by this Court. The case before us, however, is different because the Validating Act purported to validate a profession tax to an extent above Rs. 250/ - subsequent to the commencement of the Constitution. The following observations of this Court in that case in fact militate against the contention of the learned Attorney General:"There can be no doubt that if a law was passed after the amendment and sought to impose taxes on professions etc., for any period after March 31, 1939, it had to conform to the limit prescribed by S. 142-A(2). The prohibition in the second sub-section operated to circumscribe the legislative power by putting a dateline after which a tax in excess of Rs. 50 per annum per person for a period after the date-line could not be collected unless it came within the proviso." (p. 642).16. | 0[ds]Obviously therefore, what the proviso did was to introduce a new basis for assessment of the taxable income. We say so because the assessment of profit in this way links up their computation with the income assessed for levying income-tax. Under the Travancore Income-tax Act only a certain set of deductions were permissible. Now, if an assessee has in fact expended money for certain purposes but such expenses are not allowable deductions under the Travancore Income-tax Act, it would follow that the profits calculated by reference to the income-tax assessment may work out higher than those actually earned by the assessee. We do not know what was the percentage prescribed by the Government of Travancore under cl. (b) of sub-rule (1) of r. 18. But it it possible that the assessable profits determined with reference to that provision may have been less than those determined under the proviso. In any case it cannot be said with certainty that the profits arrived at would have been identical in the two cases. From the fact that the State enacted the proviso it would have been identical in the two cases. From the fact that the State enacted the proviso it would not be unreasonable to assume that the State thereby expected that the municipality would earn more income than under a computation made under sub-rule (2) of R. 18 read with cl. (b) of sub-rule (1) of R. 18.Another thing which the proviso of 1947 did was to take out of the category of assessees dealt with by sub-r. (2) of R. 18 such companies or persons as were assessable to income-tax. Sub-rule (2) as it stood, treated companies and persons transacting business partly, in the area of the municipality and partly outside such area on a uniform footing irrespective of the question whether a company or a person was assessed to income-tax or not. For the first time the proviso put in a seaprate class those who were assessed to income-tax. The proviso thus affected the basis of assessment of tax and did not merely deal with the procedure for assessing the tax.In the circumstances we cannot accept the contention of the learned Attorney General that the proviso did not affect either the basis or the incidence of the tax but merely provided a machinery for implementing the tax.We have already pointed out that the amendment of 1956 was to operate as form April, 1950, that is, from a point of time earlier than the repeal of the Travancore Income-tax Act. But then the proviso is given operation subsequent to the commencement of the Constitution, and the provisions of Art. 276 would stand in the way of the legislature which validateddecision upon which he has relied is distinguishable. That was a case in which the Validating Act had validated the imposition of a tax in excess of Rs. 50 not for a period subsequent to March 31, 1939 but for a period prior to that date. The contention of the assessee was that as the Validating Act was passed subsequent to the coming into force of S. 142-A ofthe Government of India Act, 1935 it was beyond the competence of the provincial legislature. This contention was rejected by this Court. The case before us, however, is different because the Validating Act purported to validate a profession tax to an extent above Rs. 250/ - subsequent to the commencement of the Constitution. The following observations of this Court in that case in fact militate against the contention of the learned Attorneycan be no doubt that if a law was passed after the amendment and sought to impose taxes on professions etc., for any period after March 31, 1939, it had to conform to the limit prescribed by S. 142-A(2). The prohibition in the second sub-section operated to circumscribe the legislative power by putting a dateline after which a tax in excess of Rs. 50 per annum per person for a period after the date-line could not be collected unless it came within the proviso." (p. 642). | 0 | 4,019 | 742 | ### 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:
assessable profits determined under the Indian Income-tax Act would be higher than those under the Travancore Income-tax Act. As no detailed comparison of the provisions of the Travancore Income-tax Act as in force at the date of the amendment with those of the Indian Income-tax Act was made during the argument, we are not in a position to say whether in fact the assessable profits under the Indian Income-tax Act, would have been larger than those under the Travancore Act at that time. We cannot, however, deny the possibility of the permissible deductions under the Indian Income-tax Act being fewer than those under the Travancore Act as it stood at the date of its repeal. Again, since the amendment introduces a different statute with reference to which assessable profits are to be ascertained it is possible that the amended proviso may enhance the tax liability not only of assessees falling within the first slab but also of assessees falling in the lower slabs.12. Mr. Pai has sought, to demonstrate by reference to actual figures that in respect of certain periods the present assessees liability to pay the tax as ascertained under the amended proviso would be higher than what it would have been under the unamended proviso. These figures are to be found in three statements filed in the High Court by the respondents and marked as Exs. 4, 13 and 23. The statements are identical and we would only refer to the first of them.13. In column 1 of Ex. 4 is mentioned the year of assessment; in the second column the turnover within the Quilon Municipality is set out; in the third column the turnover relating to profits assessable to Travancore Income-tax Act is set out; in the fourth column the turnover in India is set out; in the fifth column income assessable under the Travancore Income-tax Act had it been in force, is set out; in the sixth column income assessed under the Indian Income-tax Act is set out. From these figures income computed as per proviso to R. 18(2) before its amendment has been set out. If X is the figure in col. 5, Y is the figure in col. 3 and Z the figure in col. 2, the amount of income before the amendment of the proviso would then be : x/y x z. We might call it TI (1) (i.e. taxable income (1)). In the last column of the statement the taxable income computed as per the proviso after its amendment is set out. This is arrived at by dividing the income assessed under the Indian Income-tax Act which we will call A by the turnover in lndia which we will call B and multiplying it by the turnover within the Quilon Municipality i. e. Z. The taxable income thus arrived at i. e., AXZ might be called TI (2). It would appear by the comparison of the figures in col. 7 with those in col. 8 that in respect of the periods ending on June 30, 1949; June 30, 1950; June 30, 1951; June 30, 1954 and June 30, 1955 TI (2) is lower than TI(1). But in respect of periods ending on June 30, 1952; June 30, 1953 and June 30, 1952; June 30, 1953 and June 30, 1956 TI(2) is higher than TI(1). Since the Attorney General does not accept the correctness of the figures in columns 2 to 5 we will regard them as merely hypothetical. But even on the basis of these hypothetical figures. it is apparent that by applying the amended proviso the quantum of liability to pay tax on the same turnover with respect to the same period would, in certain cases, be higher than what it would have been by applying the unamended proviso. The burden of tax is thus liable to be increased in certain circumstances.14. We have already pointed out that the amendment of 1956 was to operate as form April, 1950, that is, from a point of time earlier than the repeal of the Travancore Income-tax Act. But then the proviso is given operation subsequent to the commencement of the Constitution, and the provisions of Art. 276 would stand in the way of the legislature which validated it.15. The learned Attorney General relying upon the decision of this Court in Mst. Jadao Bahujis case, (1962) 1 SCR 633 : (AIR 1961 SC 1486 ) contended that the Kerala legislature was competent to give retrospectivity to a validating law and that since the legislature has validated the amendment to the proviso as from April, 1950, the amendment is valid and took effect from that date. The decision upon which he has relied is distinguishable. That was a case in which the Validating Act had validated the imposition of a tax in excess of Rs. 50 not for a period subsequent to March 31, 1939 but for a period prior to that date. The contention of the assessee was that as the Validating Act was passed subsequent to the coming into force of S. 142-A of the Government of India Act, 1935 it was beyond the competence of the provincial legislature. This contention was rejected by this Court. The case before us, however, is different because the Validating Act purported to validate a profession tax to an extent above Rs. 250/ - subsequent to the commencement of the Constitution. The following observations of this Court in that case in fact militate against the contention of the learned Attorney General:"There can be no doubt that if a law was passed after the amendment and sought to impose taxes on professions etc., for any period after March 31, 1939, it had to conform to the limit prescribed by S. 142-A(2). The prohibition in the second sub-section operated to circumscribe the legislative power by putting a dateline after which a tax in excess of Rs. 50 per annum per person for a period after the date-line could not be collected unless it came within the proviso." (p. 642).16.
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### Explanation:
Obviously therefore, what the proviso did was to introduce a new basis for assessment of the taxable income. We say so because the assessment of profit in this way links up their computation with the income assessed for levying income-tax. Under the Travancore Income-tax Act only a certain set of deductions were permissible. Now, if an assessee has in fact expended money for certain purposes but such expenses are not allowable deductions under the Travancore Income-tax Act, it would follow that the profits calculated by reference to the income-tax assessment may work out higher than those actually earned by the assessee. We do not know what was the percentage prescribed by the Government of Travancore under cl. (b) of sub-rule (1) of r. 18. But it it possible that the assessable profits determined with reference to that provision may have been less than those determined under the proviso. In any case it cannot be said with certainty that the profits arrived at would have been identical in the two cases. From the fact that the State enacted the proviso it would have been identical in the two cases. From the fact that the State enacted the proviso it would not be unreasonable to assume that the State thereby expected that the municipality would earn more income than under a computation made under sub-rule (2) of R. 18 read with cl. (b) of sub-rule (1) of R. 18.Another thing which the proviso of 1947 did was to take out of the category of assessees dealt with by sub-r. (2) of R. 18 such companies or persons as were assessable to income-tax. Sub-rule (2) as it stood, treated companies and persons transacting business partly, in the area of the municipality and partly outside such area on a uniform footing irrespective of the question whether a company or a person was assessed to income-tax or not. For the first time the proviso put in a seaprate class those who were assessed to income-tax. The proviso thus affected the basis of assessment of tax and did not merely deal with the procedure for assessing the tax.In the circumstances we cannot accept the contention of the learned Attorney General that the proviso did not affect either the basis or the incidence of the tax but merely provided a machinery for implementing the tax.We have already pointed out that the amendment of 1956 was to operate as form April, 1950, that is, from a point of time earlier than the repeal of the Travancore Income-tax Act. But then the proviso is given operation subsequent to the commencement of the Constitution, and the provisions of Art. 276 would stand in the way of the legislature which validateddecision upon which he has relied is distinguishable. That was a case in which the Validating Act had validated the imposition of a tax in excess of Rs. 50 not for a period subsequent to March 31, 1939 but for a period prior to that date. The contention of the assessee was that as the Validating Act was passed subsequent to the coming into force of S. 142-A ofthe Government of India Act, 1935 it was beyond the competence of the provincial legislature. This contention was rejected by this Court. The case before us, however, is different because the Validating Act purported to validate a profession tax to an extent above Rs. 250/ - subsequent to the commencement of the Constitution. The following observations of this Court in that case in fact militate against the contention of the learned Attorneycan be no doubt that if a law was passed after the amendment and sought to impose taxes on professions etc., for any period after March 31, 1939, it had to conform to the limit prescribed by S. 142-A(2). The prohibition in the second sub-section operated to circumscribe the legislative power by putting a dateline after which a tax in excess of Rs. 50 per annum per person for a period after the date-line could not be collected unless it came within the proviso." (p. 642).
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Ashok K Jha Vs. Garden Silk Mills | two recent decisions of this Court viz., (i) State of Madhya Pradesh and Ors. vs. Visan Kumar Shiv Charan Lal (AIR 2009 SC 1999 ), and (ii) Ramesh Chandra Sankla vs. Vikram Cement (AIR 2009 SC 713 ). In the case of Visan Kumar Shiv Charan Lal, this Court referred to earlier decisions in the case of Umaji 1, Sushilabai Laxminarayan3 and Ratnagiri District Co-operative Bank Ltd.2, and held: "8. ......"Even when in the cause title of an application both Article 226 and Article 227 of the Constitution have been mentioned, the learned single Judge is at liberty to decide, according to facts of each particular case, whether the said application ought to be dealt with only under Article 226 of the Constitution. For determining the question of maintainability of an appeal against such a judgment of the Single Judge the Division bench has to find out whether in substance the judgment has been passed by the learned Single Judge in exercise of the jurisdiction under Article 226 of the Constitution. In the event in passing his judgment on an application which had mentioned in its cause title both Articles 226 and 227, the Single Judge has in fact invoked only his supervisory powers under Article 227, the appeal under clause 15 would not lie. The clause 15 of the Letters Patent expressly bars appeals against orders of Single Judges passed under revisional or supervisory powers. Even when the learned Single Judges order has been passed under both the articles, for deciding the maintainability against such an order what would be relevant is the principal or main relief granted by the judgment passed by learned Single Judge and not the ancillary directions given by him. The expression `ancillary means, in the context, incidental or consequential to the main part of the order." 33. In Visan Kumar Shiv Charan Lal, this Court further held that the determining factor is the real nature of principal order passed by the Single Judge which is appealed against and neither mentioning in the cause title of the application of both the Articles nor granting of ancillary order thereupon by the Single Judge would be relevant and in each case the Division Bench must consider the substance of the Judgment under appeal to ascertain whether the Single Judge has mainly or principally exercised his jurisdiction under Article 226 or Article 227 of the Constitution. 34. In Ramesh Chandra Sankla, this Court held: "32. In our judgment, the learned Counsel for the appellant is right in submitting that nomenclature of the proceeding or reference to a particular Article of the Constitution is not final or conclusive. He is also right in submitting that an observation by a Single Judge as to how he had dealt with the matter is also not decisive. If it were so, a petition strictly falling under Article 226 simpliciter can be disposed of by a Single Judge observing that he is exercising power of superintendence under Article 227of the Constitution. Can such statement by a Single Judge take away from the party aggrieved a right of appeal against the judgment if otherwise the petition is under Article 226 of the Constitution and subject to an intra court/Letters Patent Appeal? The reply unquestionably is in the negative." 35. If the judgment under appeal falls squarely within four corners of Article 227, it goes without saying that intra court appeal from such judgment would not be maintainable.On the other hand, if the petitioner has invoked the jurisdiction of the High Court for issuance of certain writ under Article 226, although Article 227 is also mentioned, and principally the judgment appealed against falls under Article 226, the appeal would be maintainable. What is important to be ascertained is the true nature of order passed by the Single Judge and not what provision he mentions while exercising such powers. We agree with the view of this Court in Ramesh Chandra Sankla that a statement by learned Single Judge that he has exercised power under Article 227, cannot take away right of appeal against such judgment if power is otherwise found to have been exercised under Article 226. The vital factor for determination of maintainability of intra court appeal is the nature of jurisdiction invoked by the party and the true nature of principal order passed by the Single Judge.36. Insofar as the present case is concerned, in the cause title of the writ petition (Special Civil Application), Articles 226 and 227 of the Constitution have been mentioned. A careful reading of the writ petition shows that writ petition is not confined to supervisory jurisdiction of the High Court. The employer has invoked jurisdiction of the High Court by praying for a writ of certiorari. The prayer clause in the writ petition reads, "In view of the aforesaid premises your Lordships may be pleased to issue a writ of certiorari or any other appropriate order......" . The judgment of the Single Judge is, thus, traceable to Article 226. The statement made by the Single Judge in his order that no case for interference is made out under Article 227 of the Constitution is not decisive. Moreover, the Division Bench in its order observed, "though long drawn arguments were advanced on the question of maintainability of this Appeal, there rally was not a serious contest on the question of maintainability of the Appeal." For all these reasons, we hold that Letters Patent Appeal was maintainable from the order dated October 1, 2007 passed by the learned Single Judge. We answer question (2) in affirmative.37 By way of foot-note, we may observe that during the course of hearing of the appeal, we were informed by the Senior Counsel for the employer that dispute has been resolved amicably with twelve employees. We gave an opportunity to the remaining employees to settle the dispute with the employer as has been done by twelve employees, and although employer expressed their willingness, but the remaining employees found the offer of the employer unacceptable. | 0[ds]35. If the judgment under appeal falls squarely within four corners of Article 227, it goes without saying that intra court appeal from such judgment would not be maintainable.On the other hand, if the petitioner has invoked the jurisdiction of the High Court for issuance of certain writ under Article 226, although Article 227 is also mentioned, and principally the judgment appealed against falls under Article 226, the appeal would be maintainable. What is important to be ascertained is the true nature of order passed by the Single Judge and not what provision he mentions while exercising such powers. We agree with the view of this Court in Ramesh Chandra Sankla that a statement by learned Single Judge that he has exercised power under Article 227, cannot take away right of appeal against such judgment if power is otherwise found to have been exercised under Article 226. The vital factor for determination of maintainability of intra court appeal is the nature of jurisdiction invoked by the party and the true nature of principal order passed by the Single Judge.36. Insofar as the present case is concerned, in the cause title of the writ petition (Special Civil Application), Articles 226 and 227 of the Constitution have been mentioned. A careful reading of the writ petition shows that writ petition is not confined to supervisory jurisdiction of the High Court. The employer has invoked jurisdiction of the High Court by praying for a writ of certiorari. The prayer clause in the writ petition reads, "In view of the aforesaid premises your Lordships may be pleased to issue a writ of certiorari or any other appropriate order......" . The judgment of the Single Judge is, thus, traceable to Article 226. The statement made by the Single Judge in his order that no case for interference is made out under Article 227 of the Constitution is not decisive. Moreover, the Division Bench in its order observed, "though long drawn arguments were advanced on the question of maintainability of this Appeal, there rally was not a serious contest on the question of maintainability of the Appeal." For all these reasons, we hold that Letters Patent Appeal was maintainable from the order dated October 1, 2007 passed by the learned Single Judge. We answer question (2) in affirmative.37 By way ofwe may observe that during the course of hearing of the appeal, we were informed by the Senior Counsel for the employer that dispute has been resolved amicably with twelve employees. We gave an opportunity to the remaining employees to settle the dispute with the employer as has been done by twelve employees, and although employer expressed their willingness, but the remaining employees found the offer of the employer unacceptable. | 0 | 7,177 | 501 | ### 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:
two recent decisions of this Court viz., (i) State of Madhya Pradesh and Ors. vs. Visan Kumar Shiv Charan Lal (AIR 2009 SC 1999 ), and (ii) Ramesh Chandra Sankla vs. Vikram Cement (AIR 2009 SC 713 ). In the case of Visan Kumar Shiv Charan Lal, this Court referred to earlier decisions in the case of Umaji 1, Sushilabai Laxminarayan3 and Ratnagiri District Co-operative Bank Ltd.2, and held: "8. ......"Even when in the cause title of an application both Article 226 and Article 227 of the Constitution have been mentioned, the learned single Judge is at liberty to decide, according to facts of each particular case, whether the said application ought to be dealt with only under Article 226 of the Constitution. For determining the question of maintainability of an appeal against such a judgment of the Single Judge the Division bench has to find out whether in substance the judgment has been passed by the learned Single Judge in exercise of the jurisdiction under Article 226 of the Constitution. In the event in passing his judgment on an application which had mentioned in its cause title both Articles 226 and 227, the Single Judge has in fact invoked only his supervisory powers under Article 227, the appeal under clause 15 would not lie. The clause 15 of the Letters Patent expressly bars appeals against orders of Single Judges passed under revisional or supervisory powers. Even when the learned Single Judges order has been passed under both the articles, for deciding the maintainability against such an order what would be relevant is the principal or main relief granted by the judgment passed by learned Single Judge and not the ancillary directions given by him. The expression `ancillary means, in the context, incidental or consequential to the main part of the order." 33. In Visan Kumar Shiv Charan Lal, this Court further held that the determining factor is the real nature of principal order passed by the Single Judge which is appealed against and neither mentioning in the cause title of the application of both the Articles nor granting of ancillary order thereupon by the Single Judge would be relevant and in each case the Division Bench must consider the substance of the Judgment under appeal to ascertain whether the Single Judge has mainly or principally exercised his jurisdiction under Article 226 or Article 227 of the Constitution. 34. In Ramesh Chandra Sankla, this Court held: "32. In our judgment, the learned Counsel for the appellant is right in submitting that nomenclature of the proceeding or reference to a particular Article of the Constitution is not final or conclusive. He is also right in submitting that an observation by a Single Judge as to how he had dealt with the matter is also not decisive. If it were so, a petition strictly falling under Article 226 simpliciter can be disposed of by a Single Judge observing that he is exercising power of superintendence under Article 227of the Constitution. Can such statement by a Single Judge take away from the party aggrieved a right of appeal against the judgment if otherwise the petition is under Article 226 of the Constitution and subject to an intra court/Letters Patent Appeal? The reply unquestionably is in the negative." 35. If the judgment under appeal falls squarely within four corners of Article 227, it goes without saying that intra court appeal from such judgment would not be maintainable.On the other hand, if the petitioner has invoked the jurisdiction of the High Court for issuance of certain writ under Article 226, although Article 227 is also mentioned, and principally the judgment appealed against falls under Article 226, the appeal would be maintainable. What is important to be ascertained is the true nature of order passed by the Single Judge and not what provision he mentions while exercising such powers. We agree with the view of this Court in Ramesh Chandra Sankla that a statement by learned Single Judge that he has exercised power under Article 227, cannot take away right of appeal against such judgment if power is otherwise found to have been exercised under Article 226. The vital factor for determination of maintainability of intra court appeal is the nature of jurisdiction invoked by the party and the true nature of principal order passed by the Single Judge.36. Insofar as the present case is concerned, in the cause title of the writ petition (Special Civil Application), Articles 226 and 227 of the Constitution have been mentioned. A careful reading of the writ petition shows that writ petition is not confined to supervisory jurisdiction of the High Court. The employer has invoked jurisdiction of the High Court by praying for a writ of certiorari. The prayer clause in the writ petition reads, "In view of the aforesaid premises your Lordships may be pleased to issue a writ of certiorari or any other appropriate order......" . The judgment of the Single Judge is, thus, traceable to Article 226. The statement made by the Single Judge in his order that no case for interference is made out under Article 227 of the Constitution is not decisive. Moreover, the Division Bench in its order observed, "though long drawn arguments were advanced on the question of maintainability of this Appeal, there rally was not a serious contest on the question of maintainability of the Appeal." For all these reasons, we hold that Letters Patent Appeal was maintainable from the order dated October 1, 2007 passed by the learned Single Judge. We answer question (2) in affirmative.37 By way of foot-note, we may observe that during the course of hearing of the appeal, we were informed by the Senior Counsel for the employer that dispute has been resolved amicably with twelve employees. We gave an opportunity to the remaining employees to settle the dispute with the employer as has been done by twelve employees, and although employer expressed their willingness, but the remaining employees found the offer of the employer unacceptable.
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### Explanation:
35. If the judgment under appeal falls squarely within four corners of Article 227, it goes without saying that intra court appeal from such judgment would not be maintainable.On the other hand, if the petitioner has invoked the jurisdiction of the High Court for issuance of certain writ under Article 226, although Article 227 is also mentioned, and principally the judgment appealed against falls under Article 226, the appeal would be maintainable. What is important to be ascertained is the true nature of order passed by the Single Judge and not what provision he mentions while exercising such powers. We agree with the view of this Court in Ramesh Chandra Sankla that a statement by learned Single Judge that he has exercised power under Article 227, cannot take away right of appeal against such judgment if power is otherwise found to have been exercised under Article 226. The vital factor for determination of maintainability of intra court appeal is the nature of jurisdiction invoked by the party and the true nature of principal order passed by the Single Judge.36. Insofar as the present case is concerned, in the cause title of the writ petition (Special Civil Application), Articles 226 and 227 of the Constitution have been mentioned. A careful reading of the writ petition shows that writ petition is not confined to supervisory jurisdiction of the High Court. The employer has invoked jurisdiction of the High Court by praying for a writ of certiorari. The prayer clause in the writ petition reads, "In view of the aforesaid premises your Lordships may be pleased to issue a writ of certiorari or any other appropriate order......" . The judgment of the Single Judge is, thus, traceable to Article 226. The statement made by the Single Judge in his order that no case for interference is made out under Article 227 of the Constitution is not decisive. Moreover, the Division Bench in its order observed, "though long drawn arguments were advanced on the question of maintainability of this Appeal, there rally was not a serious contest on the question of maintainability of the Appeal." For all these reasons, we hold that Letters Patent Appeal was maintainable from the order dated October 1, 2007 passed by the learned Single Judge. We answer question (2) in affirmative.37 By way ofwe may observe that during the course of hearing of the appeal, we were informed by the Senior Counsel for the employer that dispute has been resolved amicably with twelve employees. We gave an opportunity to the remaining employees to settle the dispute with the employer as has been done by twelve employees, and although employer expressed their willingness, but the remaining employees found the offer of the employer unacceptable.
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Jayashree W/O Vilas Bhole Vs. Dr. Vilas Pundlikrao Bhole | the said petition, without there being refusal to join his company, it cannot be said that filing of written statement with some allegations by her proved her intention to bring the cohabitation to an end permanently. As such, there is no evidence to prove her intention to bring the cohabitation permanently to an end. Mere separate residence for a statutory period of two years does not amount to desertion for granting a decree for divorce. In the present petition, the appellant/wife has specifically stated that after receipt of a notice of the petition for restitution of conjugal rights, she made attempts to meet him in the hospital and made efforts to reconcile, but he refused for it and lastly, he withdrew that petition. It was asked to her in the cross-examination as to whether she had filed an application before the Marriage Councillor stating that she wanted to join the company of the husband or file a petition for restitution of conjugal rights. She admitted that she had not filed any such petition. However, the facts discussed above show that the respondent/husband had filed a petition for restitution of conjugal rights and immediately he had withdrawn the same. It was suggested to her that she had no desire to join the company of her husband and she denied the said suggestion. Hence, in the present case, though there were some differences between this couple, their relations were not strained to that extent before the incident which did occur in April, 2000. Because of quarrel arose in April, 2000, she left his house in May, 2000 and living separate. Nothing is there to prove her intention to bring the cohabitation to an end permanently. The respondent/ husband had filed petition for restitution of conjugal rights, but he claims that on account of false allegations made by the wife against him, he presumed that she had no desire to join his company, hence, he has withdrawn that petition. There were no circumstances for drawing such a presumption that she had no desire to cohabit with him.In the present case, therefore, in proof of animus deserendi, there is no evidence. However, the learned Judge of the Family Court on account of wifes act to leave the house of her husband behind his back and her act to obtain school leaving certificate of her son and admitting him in a school at Mumbai, held these acts to be the circumstances sufficient to prove her intention to bring the cohabitation to an end permanently. However, as discussed to above, those circumstances are not sufficient in proof of her intention to bring to an end the cohabitation permanently which would amount to desertion. Hence, the finding recorded on the issue of desertion needs to be set aside, as it is not justified.16. On behalf of the respondent/husband, an attempt is made to show that the marriage is irretrievably broken down as the respondent/husband has re-married after the decree for dissolution of marriage was passed. hence, the decree for dissolution of marriage should not be set aside. In support of this submission, reliance was placed on the decision of the Apex Court in the case of A. Jayachandra v. Aneel Kaur, reported in 2005 (2) Supreme Court Cases 22, wherein the Apex Court held that irretrievably breaking down of a marriage though not on statutory ground for seeking divorce, to shorten the litigation and save the parties from further agony, marriage can be dissolved. Admittedly, in the present case, the respondent/husband after passing of decree for dissolution of marriage, re-married with one Sangita on 14-10-2004. The decree for dissolution of marriage came to be passed on 29-01-2004 and the appellant/wife preferred present appeal on 04-10-2004. On 04-10-2004 itself, a notice in this appeal came to be issued with ad-interim relief on 04-10-2004. Before service of that injunction order and notice, on 14-10-2004, the respondent/husband re-married and now, he claims that because of the said fact, his marriage with the appellant has irretrievably broken down, hence, the decree for dissolution of marriage passed by the Family Court should not be disturbed.On behalf of the appellant/wife, submission is made that the act of the respondent/husband to re-marry without ascertaining as to whether any appeal is preferred against the decree by itself shows his intention not to allow the appellant/wife to join his company. Hence, the second marriage of the husband cannot be accepted to be a ground to confirm the decree for dissolution of marriage. In the case of Smt. Chandra Mohini Srivastava v. Shri Avinash Prasad Srivastava and another, reported in AIR 1967 Supreme Court 581, the Apex Court considering the scope of Section 15 read with Section 28 of the Hindu Marriage Act, 1955, held that on dissolution of a marriage, a spouse can lawfully marry only when there is no right of appeal against decree dissolving marriage or if there is right of appeal, time for filing appeal has expired or appeal presented has been dismissed. Admittedly, in the present case, decree for dissolution of marriage was passed and there was right of appeal against the said decree. Second marriage is performed after expiry of period of limitation for appeal, but nothing is there to show that the husband made any inquiry as to whether appeal is preferred by the appellant/wife against the decree for dissolution of marriage and same came to be dismissed. In the case of Prakash Chand Sharma v. Vimlesh (Smt.), reported in 1995 Supp (4) Supreme Court Cases 642, the wife had preferred second appeal against the decree of divorce. The second appeal was delayed by few days. Re-marriage of the husband was during pendency thereof. The Apex Court held that the decision to re-marry of the husband during pendency thereof is opposed to Section 15 of the Hindu Marriage Act. Hence, the husbands plea for grant of divorce on the ground of irretrievably breaking of the first marriage is untenable as he could not be given benefit of his own wrong. | 1[ds]8. The respondent/husband by examining three witnesses tried to bring on record alleged behaviour of the wife which would amount to cruelty. PW2 Tukaram Bhaije was a watchman engaged at Murlidhar Apartments where this couple used to stay. He has stated that he knew the appellant and the respondent as they were residing in that apartment. According to him, the appellant/wife used to confine her children in the house and used to beat them. She left the house with her parents. He further stated that she was having suitcases with her and when she left, she told him that she would not come again. It is submitted that it was not suggested to this watchman that he is giving false statement. This witness is admittedly a watchman employed for the security of the Apartment. He has not uttered a single word about the relations of this couple. He simply states that the appellant/wife used to confine the children and used to beat them. Such a statement from a watchman in the Apartment without quoting any specific incident or the period during which such alleged incident took place cannot be relied upon. At the most, it may amount to cruelty to the children. He has also not disclosed as to how he got knowledge of the said act of the appellant/wife as he has not stated that because of any reason, he was required to visit the house of the appellant and respondent and noticed said act of the appellant/wife. Such a vague statement of a watchman cannot be believed and it is not any way helpful to the respondent/husband to prove the cruelty at the hands of the appellant/wife to him. An attempt is made on behalf of the respondent/husband that present appellant disclosed to the watchman that she will not come back again and from that statement, an attempt is made to show that she left the house permanently. But it does not appear probable that the appellant would disclose before a watchman that she will not return back again as he is not related to them, nor any circumstance is brought on record to show that they had such intimate relations with that watchman so that the lady will inform him that she will not return back to the husbands house. Thus, the evidence of this watchman has been rightly rejected by the trial court.Another witness examined by the respondent/husband is one Shanti w/o Rambhau Chourasiya (PW3). She claims that even before the litigation, she was knowing this couple as the appellant was classmate of her daughter. According to her, after their marriage, this couple used to visit her house as her daughter is appellants friend. She further stated that the married life of this couple was happy for few days. As regards the behaviour of the appellant, she has stated that due to laziness, she did not cook food in time and did not do domestic work. Several times, she convinced her. She also threatened the child. She wanted to become a model. Her parents used to come to his house. Not only this, she also stated that on one occasion, appellant left the child for seven days and she (PW3) looked after the child. The appellant was making false allegation against the respondent and told her that she (appellant) did not want to live with him. The respondent/husband himself has not stated that his wife was lazy and was not preparing the food in time and on that count, there were quarrels between them. He has also not stated that on any occasion, she left her child and went away for seven days. He also does not depose that his wife had intention to be a model. Admission of PW3 in theshows that the lady is giving such an evidence as tutored to her.The last witness examined by the respondent/ husband is his uncle PW4 Digambar Bhole. He has stated that once appellant met him in a bus. He called her at his house and when he came to know about their differences, he tried to convince her, but she was not ready and told that she would not cohabit with him (respondent). In theof this witness, he has stated that on inquiry with the respondent, he came to know that his wife frequently used to say to allow her to go to her parents house and he told to the respondent as to why he did not take her for outing alongwith children and he told thathe took her for outing and every time, it was not possible for him to do so. The respondent/ husband himself has not stated any such advice being given by this witness to him or his wife making any complaints with this witness. Hence, the possibility cannot be denied that he being paternal uncle of the respondent/husband, he came forward to support his case but without quoting any specific incident. His general statement that he tried to convince the appellant/wife and she refused to cohabit with her husband, therefore, cannot be accepted as truth. As such, his evidence does not help the respondent/husband to prove cruel behaviour of the appellant/wife with her husband/respondent.The evidence of the respondent/husband and that of the witnesses examined by him, referred to above does not prove behaviour of the appellant/wife or the acts of the wife as amounting to cruelty towards her husband.9. An attempt is made on behalf of the respondent/husband to show that appellant/wife made false allegations against him in the written statement filed in the petition for restitution of conjugal rights and those allegations amount to cruelty. In support of this submission, reliance is sought to be placed on three judgments of thisratio laid down in the above referred cases is clear that the false allegations made by the wife against the husband may amount to mental cruelty. However, it is not a general rule that from the allegations made, directly inference of cruelty needs to be drawn, but from the facts of each case, the court is to determine as to whether the allegations made amount to cruelty or not. In the present case, the respondent/husband had filed a petition for restitution of conjugal rights. In that petition, the appellant/wife had filed written statement. It is submitted that she made false allegations in that written statement because of which the respondent/husband has withdrawn that petition and those allegations were alleged to be the mental cruelty to the respondent/husband.10. As referred to above, the evidence led by the respondent/husband in this case does not prove any cruel behaviour of the appellant/wife towards her husband when she was cohabiting with him. The copies of petition for restitution of conjugal rights filed by the respondent/husband and the written statement filed by the appellant/wife in that proceeding are produced in this case atand 22. The respondent/husband in paragraph No.4 of his said petition has pleaded that the appellant/wife led happy married life for six months. Thereafter, she started to show her real behaviour. She wasand being pampered by her parents, she is also lazy. She always wanted to visit her parental house and she used to compel him to fulfil her demands. In paragraph No.7, the respondent/husband alleged that due to unnatural behaviour of the appellant, that of visiting her parents every now and then, and staying there for a long time, the marital life of the respondent/husband was very much disturbed. His further pleading is about the incident which had occurred in the month of April, 2000. The appellant/wife in her written statementdenied those allegations and she has pleaded that those allegations are utterly false and are made to create an evidence. She made allegations that the husband had told her that he has married with her only to obtain dowry. She made further allegations that he was always insisting and beating her on the ground that she should fetch money from the parents.She also alleged that in the month of April, she was beaten and driven by the husband, so she was staying at the parental house. In that case, there was no opportunity to both of them to prove the allegations made by them against each other, as the respondent/husband had withdrawn the said petition. Hence, it cannot be held that the allegations made by each one of them against each other are false or true. Neither the appellant/wife nor the respondent/husband made any serious allegations against the character of each one of them. The respondent/husband alleged that her behaviour was unnatural and in reply, the appellant/wife replied that his such behaviour was for demand of money, etc., but without there being any material to prove those allegations, directly inference cannot be drawn that those allegations were false. Admittedly, this couple cohabited with each other for a period of ten years after the marriage and is blessed with two sons. They have not made any serious allegations against each other. Even in the present petition, the respondent/husband could not bring on record any conduct of the appellant/wife which would amount to cruelty. Hence, solely on the ground that she made allegations in her written statement in another proceeding that he was demanding money and when particularly that petition was not decided on merit, directly inference cannot be drawn that she made false allegations. As such, the respondent/husband failed to establish any conduct of the appellant/wife towards him which would amount to cruelty. The finding recorded by the learned Judge of the Family Court that the respondent/husband failed to establish the cruelty by the appellant/wife towards the husband is perfect and does not call for anylearned Judge, Family Court passed decree for dissolution of marriage and divorce accepting the contention of the respondent/husband that the appellant/wife deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition. The appellant/wife challenged the said finding and the decree on the ground that mere separate residence by itself does not constitute desertion to grant a decree for divorce. According to her, she was compelled to leave the company of the respondent/husband and she had no desire or intention to permanently leave the company of the husband. Learned advocate Shri Joshi, appearing on behalf of the appellant/wife advanced submission that the evidence adduced by the husband only proves the factum of separation. However, there is no evidence to prove intention to desert permanently. On the other hand, while supporting the finding and decree, learned advocate Shri Nikam, appearing on behalf of respondent/husband advanced submission that the evidence on record established the intention of the appellant/wife to desert permanently. In view of these rival contentions, the evidence on record needs scrutiny to find out as to whether desertion as required is established in the present case.On behalf of the respondent/husband, reliance is sought to be placed on the decision of the Apex Court in the case of Praveen Mehta v. Inderjit Mehta, reported in AIR 2002 Supreme Court 2582 in support of his contention that the appellant/wife left matrimonial home and inspite of several attempts by the relatives, no conciliation between them was possible. Hence, it can be reasonably inferred that the marriage between the parties has broken down irretrievably without any fault on the part of husband. Therefore, the decree of divorce granted needs no interference. In the said case, the Apex Court held that the wife left the house after few months of the marriage and inspite of attempts by the relations, the conciliation was not possible and no fault was found on the part of the husband. Hence, the Apex Court held that it can be reasonably inferred that the marriage between the parties has broken down and it was because of no fault on the part of the husband. Hence, the decree for dissolution of marriage needs no interference.Reliance was also sought to be placed on the decision of the judgment of Division Bench of this court in the case of Shyamsunder Amarlal Hotchandani v. Smt. Arti alias Sunita Shyamsunder Hotchandani, reported in AIR 2004 BOMBAY 311. In the said case, the wife was found to have deserted the petitioner/husband. The evidence established that she refused to come back inspite of various attempts made by him to bring her back. Said evidence of petitioner has not been rebutted. Because of these facts, finding came to be recorded that ingredients of Section 13(1)(ib) are satisfied and the marriage between the couple stands dissolved.On behalf of appellant/wife, in support of her contention that unless intention to desert permanently is established, a decree for dissolution of marriage cannot be passed, reliance was placed on the decision of the Apex Court in the case of Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi, reported in 2002 (1) Supreme Court Cases 308 . While considering the scope of section 13(1)(ib) of the Hindu Marriage Act, the Apex Court held that to claim a decree under section 13(1)(ib), it is necessary to prove two ingredients i.e. (i) separation in fact and (ii) animus deserendithe intention to bring cohabitation permanently to an end by deserting spouse, and on behalf of deserted spouse the absence of consent and absence of conduct motivating the desertion. It has been held that burden is on the petitioner for divorce to prove these ingredients and that they were present throughout the statutoryview of the above decision of the Apex Court, it is essential for the petitioner to prove the factum of separation for a statutory period and the intention of deserting spouse to bring cohabitation permanently to an end. At the same time, burden is on the deserted spouse to prove absence of his consent and absence of his conduct giving reasonable cause to the spouse leaving the matrimonial home throughout the statutory period. Thus, the ratio makes it clear that the burden is on both the sides. One who claims a decree for dissolution of marriage on the ground of desertion, it needs to be established that there was separation for a statutory period and it was with an intention to refuse cohabitation permanently and on the other side, burden is to prove absence of consent for his separation and absence of his conduct to give reasonable cause to the deserted spouse.With this settled legal position, the evidence in the present case needs to be examined to find out as to whether desertion as required is proved and the decree of divorce is justified.12. The respondent/husband in the present case in whose favour decree is passed, has claimed that without his consent, his wife/appellant left his house onand inspite of his attempts, refused cohabitation. To show her intention to permanently desert him, reliance is placed on two circumstances i.e. (i) the wife/appellant made false allegation in her written statement filed in a petition for restitution of conjugal rights, and (ii) that she took school leaving certificate of her son from the school of husbands residence and admitted her son in a school at Mumbai. While recording finding in favour of the respondent/husband, the learned Judge, Family Court held that these two circumstances proved animus deserendi i.e. wifes intention to permanently bring to an end the cohabitation.13. As discussed above, before April, 2000, there was no serious dispute between this couple. Each one of them is blaming other for the incident which did take place in April, 2000. Both of them admit that incident. According to the respondent/husband, in the month of April, 2000, she was insisting that he should take her to Mumbai i.e. to her parents house and he refused for the same. Hence, she gave a message to her parents and they arrived onand behind his back, left the house, again returned onand behind his back, left his house. The appellant/wife came with a case that in the welfare of the children, she asked her husband to take them to Mumbai in summer vacation, but he refused for the same and assaulted her, hence, she called her parents. They had gone to the native place of the husband i.e. at Jalgaon. The relatives made an attempt to call the respondent/husband, but on his refusal, they came back to Aurangabad and then left for Mumbai. Thus, the facts are admitted by both of them that some quarrel arose between them beforeand on the intimation given by the wife, her parents came to his house. They had gone to Jalgaon, again returned to the house at Aurangabad on00, wife left his house and staying at Mumbai at her parents house. Whether there was any reasonable cause for her to leave his house has to be seen from the record. The respondent/husband in paragraph No.5 has stated that on 14th or 15th April, 2000, there was quarrel between them as she wanted to go to her parents house. At that time, construction of his hospital building was going on, hence, he told her that they would go in June, but she did not listen. Hence, she called her parents. They arrived on 28th April and behind his back, they left the house and returned afterdays and in his absence took away all the clothes and ornaments and since then, she is residing at the house of her parents. He claims that thereafter he called her to join his company, but she did not join. Except this vague word, nothing is there to show that he made any such attempts to take her back. No relative is examined to show that at the instance of husband, they made any efforts to advise her. The husband also has not disclosed as to what efforts have been made by him to take her back. In thehe has stated that he came to know that the appellant/wife came with her parents and took all articles with her. Not only this, but he has admitted in clear terms that there was quarrel between them and it was the reason for the wife to go to her parents house. He denied the suggestion that onhe assaulted her and drove her out of the house. His witness watchman Tukaram Bhaije has brought on record only fact that on the request of the appellant/wife, he brought rickshaw and by rickshaw, appellant/wife left the house having suitcases with her. He made attempts to show that she left his house permanently stating that she told her that she would not come back again. That part of evidence is already considered and is found not reliable. Other two witnesses examined do not prove any particular fact which will help to draw an inference of intention of appellant/wife to abandon the company of the husband permanently. Thus, from the evidence led by the husband who claimed decree for dissolution of marriage, only fact established is that in the month of April, 2000, there were quarrels between this couple, on the ground that the wife was insisting that he should take her to her parents house in the month of April, 2000 and the husband was not ready for the same. The appellant/wife stayed with him for ten years. Hence, solely on the ground that she left his house onfor her parents house alongwith her children, inference cannot be drawn that she left the house with an intention to bring the cohabitation permanently to an end.At this stage, the evidence of the appellant/wife needs to be considered to find out as to whether there was any reasonable cause for her to leave the house and whether her intention was to live separate permanently from the husband. The appellant/wife has stated that in April, 2000, she made request to the husband to allow her to go to her parents as the examination of the children was over as she did not go to parents house for three years. He told her that they will go in June/July as construction was going on. She told him that school willin June/July and thereafter he tried to attack her and threw articles and lastly, he beat her severely. She then gave a message to her parents on phone and on parents arrival, they had gone to Jalgaon at the house of the parents of her husband. She further stated that his parents told that they will settle the matter. Accordingly, the father of respondent/husband called the respondent/husband, but he did not come to Jalgaon. She claims that she stayed at the house of her husbands parents for two days, but her husband/respondent did not turn up. Hence, they returned to Aurangabad. The respondent/husband admitted that the quarrel took place between them as she insisted to go to her parents house in April itself. so, she had called her parents. He has admitted that his father was running a business at Jalgaon upto the end of 2000. Thus, the wifes version appears probable that after arrival of her parents, they had gone to see the parents of her husband at Jalgaon and to intimate the incident. The paternal uncle of the husband in theitself admitted that the appellant/wife made complaint with him that her husband/respondent was not allowing her to go to her parents house nor he took her for outing and he made inquiry with his nephew as to why he did not take her for outing. Thus, it, to some extent, supports the story narrated by the wife that the respondent/husband was not allowing her to visit her parents house and because of vacation of the schools, she had made request to her husband to take her to her parents house and the husband was not ready for the same, stating that he will take her to her parents house in June or July. Her refusal to go to her parents house in June/July obvious because as the schools were toin June/July, it would not have been possible for her to go and stay at her parents house as her son was aboy and on that count, there was a quarrel between them and she was required to give a message to her parents and parents arrived and made inquiry with her husband. She has stated that on inquiry, he told that he has every right to beat his wife. hence, her parents took her to Jalgaon where the father of the husband resides. A message was given to the respondent/husband, but he refused to come to Jalgaon. The appellant/wife alongwith her parents was, therefore, required to return back to Aurangabad. According to the appellant/wife, when they returned back to Aurangabad, the mother of the respondent/husband was at the house. Respondent/husband was not present. The mother of the respondent/husband told appellant/wife to go to Mumbai and abused her. Appellant has stated that she contacted her husband on phone, but he did not turn up and lastly, she alongwith her father went to Mumbai. It is thus clear that because of the quarrel raised by the respondent/husband, she had gone to her parents house and that cannot be said to be with an intention to bring to an end the cohabitation permanently.14. Let us now consider the subsequent events after the appellant/wife left the house of her husband/respondent. She left the house of her husband onThe husband/respondent gave vague statement that he contacted her on phone and asked her to join his company, but she did not join his company. Hence, he had filed a petition for restitution of conjugal rights. That petition for restitution of conjugal rights came to be filed in the month of August, 2000 i.e. immediately within three months of their quarrel. He has admitted that though his son and wife were staying at Mumbai, he never sent any amount towards maintenance of the children. She had filed Maintenance Petition and maintenance came to be granted in her favour. Withinmonths, without making any attempts to call the wife to join his company, the husband filed a petition for restitution of conjugal rights. In the said petition, he made allegations that since six months of the marriage, her behaviour was not proper. She was lazy. She always had a desire to visit to her parents house. Her parents used to instigate her. He narrated the incident ofThere also, he made vague allegation that he tried to contact the appellant/wife on telephone, but could not succeed as her parents refused to call her on phone. He stated that he sent letters, but he is not claiming that personally, he had gone to fetch her or attempts of conciliation were made by him, and directly he filed the petition for restitution of conjugal rights. The appellant/wife appeared in that petition and filed written statement. According to her, respondent/husband always used to beat her on account of demand of money. She also claims that she had also filed a maintenance proceeding. Hence, he had filed a petition for restitution of conjugal rights. As stated above, no serious allegations were made by the appellant/wife in that petition. He has withdrawn the said petition by filing a purshisstating that the wife had filed written statement and it appeared that she had no desire to join his company and he was not willing to force her to join his company, hence, he was withdrawing the said petition. On mere filing of a petition for restitution of conjugal rights, bonafides on his part cannot be presumed when particularly the wife has already filed petition for maintenance and she never refused to join his company. In the written statement, appellant/wife did not allege that she was not ready to stay with him, but apprehended the danger to her life because of his earlier conduct. Hence, filing of written statement with some allegations by itself cannot be accepted to be a circumstance to prove the wifes intention to bring the cohabitation permanently to an end.15. The circumstance of wifes obtaining school leaving certificate of her son and admitting him in a school at Mumbai is alleged to be a circumstance to prove the wifes intention to bring to an end the cohabitation permanently. The appellant/wife has admitted that without consent of her husband, she had obtained school leaving certificate of her son from the school at Aurangabad and admitted the son in a school at Mumbai. She was staying with her parents. Husband has not made any attempts to fetch her. Her son was minor. Hence, her act to admit her son in a school at Mumbai where she was staying cannot be said to be a ground to prove the desertion. As held by the Apex Court, the burden is on the husband to prove the absence of reasonable cause for the wife to leave his company during the statutory period. Here in the present case, after appellant/wife left the house of her husband, there were no attempts from the husbands side to call her to join his company. On the contrary, he had filed a petition for restitution of conjugal rights after the wife had filed a petition for maintenance. When the wife filed her written statement in the petition for restitution of conjugal rights, without there being any attempts of conciliation, the respondent/husband withdrew the said petition, without there being refusal to join his company, it cannot be said that filing of written statement with some allegations by her proved her intention to bring the cohabitation to an end permanently. As such, there is no evidence to prove her intention to bring the cohabitation permanently to an end. Mere separate residence for a statutory period of two years does not amount to desertion for granting a decree for divorce. In the present petition, the appellant/wife has specifically stated that after receipt of a notice of the petition for restitution of conjugal rights, she made attempts to meet him in the hospital and made efforts to reconcile, but he refused for it and lastly, he withdrew that petition. It was asked to her in theas to whether she had filed an application before the Marriage Councillor stating that she wanted to join the company of the husband or file a petition for restitution of conjugal rights. She admitted that she had not filed any such petition. However, the facts discussed above show that the respondent/husband had filed a petition for restitution of conjugal rights and immediately he had withdrawn the same. It was suggested to her that she had no desire to join the company of her husband and she denied the said suggestion. Hence, in the present case, though there were some differences between this couple, their relations were not strained to that extent before the incident which did occur in April, 2000. Because of quarrel arose in April, 2000, she left his house in May, 2000 and living separate. Nothing is there to prove her intention to bring the cohabitation to an end permanently. The respondent/ husband had filed petition for restitution of conjugal rights, but he claims that on account of false allegations made by the wife against him, he presumed that she had no desire to join his company, hence, he has withdrawn that petition. There were no circumstances for drawing such a presumption that she had no desire to cohabit with him.In the present case, therefore, in proof of animus deserendi, there is no evidence. However, the learned Judge of the Family Court on account of wifes act to leave the house of her husband behind his back and her act to obtain school leaving certificate of her son and admitting him in a school at Mumbai, held these acts to be the circumstances sufficient to prove her intention to bring the cohabitation to an end permanently. However, as discussed to above, those circumstances are not sufficient in proof of her intention to bring to an end the cohabitation permanently which would amount to desertion. Hence, the finding recorded on the issue of desertion needs to be set aside, as it is not justified.16. On behalf of the respondent/husband, an attempt is made to show that the marriage is irretrievably broken down as the respondent/husband hasafter the decree for dissolution of marriage was passed. hence, the decree for dissolution of marriage should not be set aside. In support of this submission, reliance was placed on the decision of the Apex Court in the case of A. Jayachandra v. Aneel Kaur, reported in 2005 (2) Supreme Court Cases 22, wherein the Apex Court held that irretrievably breaking down of a marriage though not on statutory ground for seeking divorce, to shorten the litigation and save the parties from further agony, marriage can be dissolved. Admittedly, in the present case, the respondent/husband after passing of decree for dissolution of marriage,with one Sangita onThe decree for dissolution of marriage came to be passed onand the appellant/wife preferred present appeal on04 itself, a notice in this appeal came to be issued with04. Before service of that injunction order and notice, onied and now, he claims that because of the said fact, his marriage with the appellant has irretrievably broken down, hence, the decree for dissolution of marriage passed by the Family Court should not be disturbed.On behalf of the appellant/wife, submission is made that the act of the respondent/husband towithout ascertaining as to whether any appeal is preferred against the decree by itself shows his intention not to allow the appellant/wife to join his company. Hence, the second marriage of the husband cannot be accepted to be a ground to confirm the decree for dissolution of marriage. In the case of Smt. Chandra Mohini Srivastava v. Shri Avinash Prasad Srivastava and another, reported in AIR 1967 Supreme Court 581, the Apex Court considering the scope of Section 15 read with Section 28 of the Hindu Marriage Act, 1955, held that on dissolution of a marriage, a spouse can lawfully marry only when there is no right of appeal against decree dissolving marriage or if there is right of appeal, time for filing appeal has expired or appeal presented has been dismissed. Admittedly, in the present case, decree for dissolution of marriage was passed and there was right of appeal against the said decree. Second marriage is performed after expiry of period of limitation for appeal, but nothing is there to show that the husband made any inquiry as to whether appeal is preferred by the appellant/wife against the decree for dissolution of marriage and same came to be dismissed. In the case of Prakash Chand Sharma v. Vimlesh (Smt.), reported in 1995 Supp (4) Supreme Court Cases 642, the wife had preferred second appeal against the decree of divorce. The second appeal was delayed by few days.of the husband was during pendency thereof. The Apex Court held that the decision toof the husband during pendency thereof is opposed to Section 15 of the Hindu Marriage Act. Hence, the husbands plea for grant of divorce on the ground of irretrievably breaking of the first marriage is untenable as he could not be given benefit of his own wrong. | 1 | 11,069 | 6,020 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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the said petition, without there being refusal to join his company, it cannot be said that filing of written statement with some allegations by her proved her intention to bring the cohabitation to an end permanently. As such, there is no evidence to prove her intention to bring the cohabitation permanently to an end. Mere separate residence for a statutory period of two years does not amount to desertion for granting a decree for divorce. In the present petition, the appellant/wife has specifically stated that after receipt of a notice of the petition for restitution of conjugal rights, she made attempts to meet him in the hospital and made efforts to reconcile, but he refused for it and lastly, he withdrew that petition. It was asked to her in the cross-examination as to whether she had filed an application before the Marriage Councillor stating that she wanted to join the company of the husband or file a petition for restitution of conjugal rights. She admitted that she had not filed any such petition. However, the facts discussed above show that the respondent/husband had filed a petition for restitution of conjugal rights and immediately he had withdrawn the same. It was suggested to her that she had no desire to join the company of her husband and she denied the said suggestion. Hence, in the present case, though there were some differences between this couple, their relations were not strained to that extent before the incident which did occur in April, 2000. Because of quarrel arose in April, 2000, she left his house in May, 2000 and living separate. Nothing is there to prove her intention to bring the cohabitation to an end permanently. The respondent/ husband had filed petition for restitution of conjugal rights, but he claims that on account of false allegations made by the wife against him, he presumed that she had no desire to join his company, hence, he has withdrawn that petition. There were no circumstances for drawing such a presumption that she had no desire to cohabit with him.In the present case, therefore, in proof of animus deserendi, there is no evidence. However, the learned Judge of the Family Court on account of wifes act to leave the house of her husband behind his back and her act to obtain school leaving certificate of her son and admitting him in a school at Mumbai, held these acts to be the circumstances sufficient to prove her intention to bring the cohabitation to an end permanently. However, as discussed to above, those circumstances are not sufficient in proof of her intention to bring to an end the cohabitation permanently which would amount to desertion. Hence, the finding recorded on the issue of desertion needs to be set aside, as it is not justified.16. On behalf of the respondent/husband, an attempt is made to show that the marriage is irretrievably broken down as the respondent/husband has re-married after the decree for dissolution of marriage was passed. hence, the decree for dissolution of marriage should not be set aside. In support of this submission, reliance was placed on the decision of the Apex Court in the case of A. Jayachandra v. Aneel Kaur, reported in 2005 (2) Supreme Court Cases 22, wherein the Apex Court held that irretrievably breaking down of a marriage though not on statutory ground for seeking divorce, to shorten the litigation and save the parties from further agony, marriage can be dissolved. Admittedly, in the present case, the respondent/husband after passing of decree for dissolution of marriage, re-married with one Sangita on 14-10-2004. The decree for dissolution of marriage came to be passed on 29-01-2004 and the appellant/wife preferred present appeal on 04-10-2004. On 04-10-2004 itself, a notice in this appeal came to be issued with ad-interim relief on 04-10-2004. Before service of that injunction order and notice, on 14-10-2004, the respondent/husband re-married and now, he claims that because of the said fact, his marriage with the appellant has irretrievably broken down, hence, the decree for dissolution of marriage passed by the Family Court should not be disturbed.On behalf of the appellant/wife, submission is made that the act of the respondent/husband to re-marry without ascertaining as to whether any appeal is preferred against the decree by itself shows his intention not to allow the appellant/wife to join his company. Hence, the second marriage of the husband cannot be accepted to be a ground to confirm the decree for dissolution of marriage. In the case of Smt. Chandra Mohini Srivastava v. Shri Avinash Prasad Srivastava and another, reported in AIR 1967 Supreme Court 581, the Apex Court considering the scope of Section 15 read with Section 28 of the Hindu Marriage Act, 1955, held that on dissolution of a marriage, a spouse can lawfully marry only when there is no right of appeal against decree dissolving marriage or if there is right of appeal, time for filing appeal has expired or appeal presented has been dismissed. Admittedly, in the present case, decree for dissolution of marriage was passed and there was right of appeal against the said decree. Second marriage is performed after expiry of period of limitation for appeal, but nothing is there to show that the husband made any inquiry as to whether appeal is preferred by the appellant/wife against the decree for dissolution of marriage and same came to be dismissed. In the case of Prakash Chand Sharma v. Vimlesh (Smt.), reported in 1995 Supp (4) Supreme Court Cases 642, the wife had preferred second appeal against the decree of divorce. The second appeal was delayed by few days. Re-marriage of the husband was during pendency thereof. The Apex Court held that the decision to re-marry of the husband during pendency thereof is opposed to Section 15 of the Hindu Marriage Act. Hence, the husbands plea for grant of divorce on the ground of irretrievably breaking of the first marriage is untenable as he could not be given benefit of his own wrong.
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### Explanation:
When the wife filed her written statement in the petition for restitution of conjugal rights, without there being any attempts of conciliation, the respondent/husband withdrew the said petition, without there being refusal to join his company, it cannot be said that filing of written statement with some allegations by her proved her intention to bring the cohabitation to an end permanently. As such, there is no evidence to prove her intention to bring the cohabitation permanently to an end. Mere separate residence for a statutory period of two years does not amount to desertion for granting a decree for divorce. In the present petition, the appellant/wife has specifically stated that after receipt of a notice of the petition for restitution of conjugal rights, she made attempts to meet him in the hospital and made efforts to reconcile, but he refused for it and lastly, he withdrew that petition. It was asked to her in theas to whether she had filed an application before the Marriage Councillor stating that she wanted to join the company of the husband or file a petition for restitution of conjugal rights. She admitted that she had not filed any such petition. However, the facts discussed above show that the respondent/husband had filed a petition for restitution of conjugal rights and immediately he had withdrawn the same. It was suggested to her that she had no desire to join the company of her husband and she denied the said suggestion. Hence, in the present case, though there were some differences between this couple, their relations were not strained to that extent before the incident which did occur in April, 2000. Because of quarrel arose in April, 2000, she left his house in May, 2000 and living separate. Nothing is there to prove her intention to bring the cohabitation to an end permanently. The respondent/ husband had filed petition for restitution of conjugal rights, but he claims that on account of false allegations made by the wife against him, he presumed that she had no desire to join his company, hence, he has withdrawn that petition. There were no circumstances for drawing such a presumption that she had no desire to cohabit with him.In the present case, therefore, in proof of animus deserendi, there is no evidence. However, the learned Judge of the Family Court on account of wifes act to leave the house of her husband behind his back and her act to obtain school leaving certificate of her son and admitting him in a school at Mumbai, held these acts to be the circumstances sufficient to prove her intention to bring the cohabitation to an end permanently. However, as discussed to above, those circumstances are not sufficient in proof of her intention to bring to an end the cohabitation permanently which would amount to desertion. Hence, the finding recorded on the issue of desertion needs to be set aside, as it is not justified.16. On behalf of the respondent/husband, an attempt is made to show that the marriage is irretrievably broken down as the respondent/husband hasafter the decree for dissolution of marriage was passed. hence, the decree for dissolution of marriage should not be set aside. In support of this submission, reliance was placed on the decision of the Apex Court in the case of A. Jayachandra v. Aneel Kaur, reported in 2005 (2) Supreme Court Cases 22, wherein the Apex Court held that irretrievably breaking down of a marriage though not on statutory ground for seeking divorce, to shorten the litigation and save the parties from further agony, marriage can be dissolved. Admittedly, in the present case, the respondent/husband after passing of decree for dissolution of marriage,with one Sangita onThe decree for dissolution of marriage came to be passed onand the appellant/wife preferred present appeal on04 itself, a notice in this appeal came to be issued with04. Before service of that injunction order and notice, onied and now, he claims that because of the said fact, his marriage with the appellant has irretrievably broken down, hence, the decree for dissolution of marriage passed by the Family Court should not be disturbed.On behalf of the appellant/wife, submission is made that the act of the respondent/husband towithout ascertaining as to whether any appeal is preferred against the decree by itself shows his intention not to allow the appellant/wife to join his company. Hence, the second marriage of the husband cannot be accepted to be a ground to confirm the decree for dissolution of marriage. In the case of Smt. Chandra Mohini Srivastava v. Shri Avinash Prasad Srivastava and another, reported in AIR 1967 Supreme Court 581, the Apex Court considering the scope of Section 15 read with Section 28 of the Hindu Marriage Act, 1955, held that on dissolution of a marriage, a spouse can lawfully marry only when there is no right of appeal against decree dissolving marriage or if there is right of appeal, time for filing appeal has expired or appeal presented has been dismissed. Admittedly, in the present case, decree for dissolution of marriage was passed and there was right of appeal against the said decree. Second marriage is performed after expiry of period of limitation for appeal, but nothing is there to show that the husband made any inquiry as to whether appeal is preferred by the appellant/wife against the decree for dissolution of marriage and same came to be dismissed. In the case of Prakash Chand Sharma v. Vimlesh (Smt.), reported in 1995 Supp (4) Supreme Court Cases 642, the wife had preferred second appeal against the decree of divorce. The second appeal was delayed by few days.of the husband was during pendency thereof. The Apex Court held that the decision toof the husband during pendency thereof is opposed to Section 15 of the Hindu Marriage Act. Hence, the husbands plea for grant of divorce on the ground of irretrievably breaking of the first marriage is untenable as he could not be given benefit of his own wrong.
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Prabhakar & Ors Vs. State Of Maharashtra & Ors | Mofussil officer was to be taken for determination of his seniority whereas in case of the officer belonging to the Greater Bombay Police Force, the date of his appointment was to be taken and in the opinion of the High Court, this was clearly discriminatory.(3) That in case of a cadet whose period of training had been extended on account of his failure at the examination the impugned clause gave an advantage even to such a bad officer.5. In our opinion none of the grounds forming the basis of the judgment of the High Court is sustainable. The attack on Rule 7 (1) (a) was not specifically made in the writ application as originally presented by respondent No. 4. He laid the foundation for the attack in his rejoinder application A counter affidavit thereafter was filed by the State stating the facts which led to the framing of clause 7 (1) (a). Respondent No. 4 filed a further rejoinder. It was not disputed, rather, admitted on all hands that at Naigaum School the training period was much shorter than the period of 18 months which continued at Nasik. If during the period of 10 years cadets on the basis of a shorter period of training were appointed to the Bombay Police Force without any specific order of the Government (although it must not be the case) it might have affected the validity of their appointment but not the fact that they had been so appointed on a shorter period of training.6. The High Court has committed an error in the interpretation of the provision contained in clause 7 (1) (a) of the Order. On transfer of any police officer from Greater Bombay to the District and vice versa, if his training had commenced on any date between the period of 1st May, 1939 to 1st June, 1949, then his seniority was to be determined vis-a-vis the police officer of the force to which he was transferred with reference to the dates on which their training commenced. It is not that in one case it will be the date of commencement of the training and in the other it will be the date of appointment, as seems to have been wrongly thought by the High Court. To explain, we may take an example. Suppose a Sub-Inspector A whose training had commenced - say on 1st May, 1947 resulting in his appointment - say, on 1st November 1947 was transferred to the Mofussil where, let us suppose again, a police officer B was there whose training had commenced - say on 1st April, 1947, resulting in his appointment on 1st October, 1948, then in such a case B will be senior to A because his training commenced earlier even though he was appointed later. But if there be an officer, suppose C, in the Mofussil whose training commenced - say on 1st June 1947 resulting in his appointment on 1st December , 1948 then he cannot be senior to A by taking 1st June, 1947 as the date of commencement of his training and comparing with 1st November, 1947 the date of appointment of A. This interpretation of the rule which we have put was accepted to be the correct interpretation on all hands including the Government. Learned counsel for respondent No. 4, however, submitted that the impugned seniority list had not been prepared by the Government on such an interpretation of clause 7 (1) (a), but the list prepared is on the basis of the interpretation given by the High Court. On behalf of the State we were informed that it was not so. We have no. doubt in our mind that even if there be any mistake or discrepancy in the seniority list which is found to be not in conformity with the interpretation put by us to clause 7 (1) (a) then that mistake or discrepancy will have to be removed sooner them later and the seniority list will be set at right accordingly.7. Ordinarily and generally the method of fixation of seniority as provided in sub-clause (b) of clause 7 (1) of the Order was the correct and proper method to be followed. But because of the special situation of appointment of some police officers during the period of 10 years on a shorter period of training a departure was made as provided in sub-clause (a). A cadet who received his full training for 18 months at Nasik for no. fault of his was appointed later than a cadet who started training later at Naigaum but was appointed earlier than the former. # There was nothing wrong, illegal or unreasonable in making a provision in sub-clause (a) that in such a situation the commencement of the period of training will be taken as the date for the purposes of fixation of seniority. There was a reasonable and rational nexus between the object and the rule. It was for the rule making authority to decide and to choose in such a situation - either the date of commencement of the training or the date of appointment. Taking the former date in the special circumstances seems to be reasonable and justified. # Such a provision cannot be said to be violative of Articles 14 and 16 of the Constitution.8. The third ground for declaring clause 7 (1) (a) ultra vires given by the High Court theoretically was correct but materials were placed before us from the various affidavits to show that hardly there was such a case which had got the advantage of the clause even after failure in the examination. There was one such case of hardship of not passing out the examination in time due to reasons beyond the control of the cadet. Clause 7 (1) (a), in our opinion, was not meant to give any undue advantage to a nondeserving police officer who failed to pass the training examination at the proper time. No. specific instance was brought to our notice where such advantage had been accorded. | 1[ds]The order of the High Court made against appellant No. 3, could not be assailed before us.Appellant No. 3, is not, therefore, entitled to any relief in this appeal.In our opinion none of the grounds forming the basis of the judgment of the High Court is sustainable. The attack on Rule 7 (1) (a) was not specifically made in the writ application as originally presented by respondent No. 4. He laid the foundation for the attack in his rejoinder application A counter affidavit thereafter was filed by the State stating the facts which led to the framing of clause 7 (1) (a). Respondent No. 4 filed a further rejoinder. It was not disputed, rather, admitted on all hands that at Naigaum School the training period was much shorter than the period of 18 months which continued at Nasik. If during the period of 10 years cadets on the basis of a shorter period of training were appointed to the Bombay Police Force without any specific order of the Government (although it must not be the case) it might have affected the validity of their appointment but not the fact that they had been so appointed on a shorter period of training.6. The High Court has committed an error in the interpretation of the provision contained in clause 7 (1) (a) of the Order. On transfer of any police officer from Greater Bombay to the District and vice versa, if his training had commenced on any date between the period of 1st May, 1939 to 1st June, 1949, then his seniority was to be determined vis-a-vis the police officer of the force to which he was transferred with reference to the dates on which their training commenced. It is not that in one case it will be the date of commencement of the training and in the other it will be the date of appointment, as seems to have been wrongly thought by the HighWe have no. doubt in our mind that even if there be any mistake or discrepancy in the seniority list which is found to be not in conformity with the interpretation put by us to clause 7 (1) (a) then that mistake or discrepancy will have to be removed sooner them later and the seniority list will be set at right accordingly.7. Ordinarily and generally the method of fixation of seniority as provided in sub-clause (b) of clause 7 (1) of the Order was the correct and proper method to be followed. But because of the special situation of appointment of some police officers during the period of 10 years on a shorter period of training a departure was made as provided in sub-clause (a). A cadet who received his full training for 18 months at Nasik for no. fault of his was appointed later than a cadet who started training later at Naigaum but was appointed earlier than the former. # There was nothing wrong, illegal or unreasonable in making a provision in sub-clause (a) that in such a situation the commencement of the period of training will be taken as the date for the purposes of fixation of seniority. There was a reasonable and rational nexus between the object and the rule. It was for the rule making authority to decide and to choose in such a situation - either the date of commencement of the training or the date of appointment. Taking the former date in the special circumstances seems to be reasonable and justified. # Such a provision cannot be said to be violative of Articles 14 and 16 of the Constitution.8. The third ground for declaring clause 7 (1) (a) ultra vires given by the High Court theoretically was correct but materials were placed before us from the various affidavits to show that hardly there was such a case which had got the advantage of the clause even after failure in the examination. There was one such case of hardship of not passing out the examination in time due to reasons beyond the control of the cadet. Clause 7 (1) (a), in our opinion, was not meant to give any undue advantage to a nondeserving police officer who failed to pass the training examination at the proper time. No. specific instance was brought to our notice where such advantage had been accorded. | 1 | 2,285 | 801 | ### Instruction:
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Mofussil officer was to be taken for determination of his seniority whereas in case of the officer belonging to the Greater Bombay Police Force, the date of his appointment was to be taken and in the opinion of the High Court, this was clearly discriminatory.(3) That in case of a cadet whose period of training had been extended on account of his failure at the examination the impugned clause gave an advantage even to such a bad officer.5. In our opinion none of the grounds forming the basis of the judgment of the High Court is sustainable. The attack on Rule 7 (1) (a) was not specifically made in the writ application as originally presented by respondent No. 4. He laid the foundation for the attack in his rejoinder application A counter affidavit thereafter was filed by the State stating the facts which led to the framing of clause 7 (1) (a). Respondent No. 4 filed a further rejoinder. It was not disputed, rather, admitted on all hands that at Naigaum School the training period was much shorter than the period of 18 months which continued at Nasik. If during the period of 10 years cadets on the basis of a shorter period of training were appointed to the Bombay Police Force without any specific order of the Government (although it must not be the case) it might have affected the validity of their appointment but not the fact that they had been so appointed on a shorter period of training.6. The High Court has committed an error in the interpretation of the provision contained in clause 7 (1) (a) of the Order. On transfer of any police officer from Greater Bombay to the District and vice versa, if his training had commenced on any date between the period of 1st May, 1939 to 1st June, 1949, then his seniority was to be determined vis-a-vis the police officer of the force to which he was transferred with reference to the dates on which their training commenced. It is not that in one case it will be the date of commencement of the training and in the other it will be the date of appointment, as seems to have been wrongly thought by the High Court. To explain, we may take an example. Suppose a Sub-Inspector A whose training had commenced - say on 1st May, 1947 resulting in his appointment - say, on 1st November 1947 was transferred to the Mofussil where, let us suppose again, a police officer B was there whose training had commenced - say on 1st April, 1947, resulting in his appointment on 1st October, 1948, then in such a case B will be senior to A because his training commenced earlier even though he was appointed later. But if there be an officer, suppose C, in the Mofussil whose training commenced - say on 1st June 1947 resulting in his appointment on 1st December , 1948 then he cannot be senior to A by taking 1st June, 1947 as the date of commencement of his training and comparing with 1st November, 1947 the date of appointment of A. This interpretation of the rule which we have put was accepted to be the correct interpretation on all hands including the Government. Learned counsel for respondent No. 4, however, submitted that the impugned seniority list had not been prepared by the Government on such an interpretation of clause 7 (1) (a), but the list prepared is on the basis of the interpretation given by the High Court. On behalf of the State we were informed that it was not so. We have no. doubt in our mind that even if there be any mistake or discrepancy in the seniority list which is found to be not in conformity with the interpretation put by us to clause 7 (1) (a) then that mistake or discrepancy will have to be removed sooner them later and the seniority list will be set at right accordingly.7. Ordinarily and generally the method of fixation of seniority as provided in sub-clause (b) of clause 7 (1) of the Order was the correct and proper method to be followed. But because of the special situation of appointment of some police officers during the period of 10 years on a shorter period of training a departure was made as provided in sub-clause (a). A cadet who received his full training for 18 months at Nasik for no. fault of his was appointed later than a cadet who started training later at Naigaum but was appointed earlier than the former. # There was nothing wrong, illegal or unreasonable in making a provision in sub-clause (a) that in such a situation the commencement of the period of training will be taken as the date for the purposes of fixation of seniority. There was a reasonable and rational nexus between the object and the rule. It was for the rule making authority to decide and to choose in such a situation - either the date of commencement of the training or the date of appointment. Taking the former date in the special circumstances seems to be reasonable and justified. # Such a provision cannot be said to be violative of Articles 14 and 16 of the Constitution.8. The third ground for declaring clause 7 (1) (a) ultra vires given by the High Court theoretically was correct but materials were placed before us from the various affidavits to show that hardly there was such a case which had got the advantage of the clause even after failure in the examination. There was one such case of hardship of not passing out the examination in time due to reasons beyond the control of the cadet. Clause 7 (1) (a), in our opinion, was not meant to give any undue advantage to a nondeserving police officer who failed to pass the training examination at the proper time. No. specific instance was brought to our notice where such advantage had been accorded.
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The order of the High Court made against appellant No. 3, could not be assailed before us.Appellant No. 3, is not, therefore, entitled to any relief in this appeal.In our opinion none of the grounds forming the basis of the judgment of the High Court is sustainable. The attack on Rule 7 (1) (a) was not specifically made in the writ application as originally presented by respondent No. 4. He laid the foundation for the attack in his rejoinder application A counter affidavit thereafter was filed by the State stating the facts which led to the framing of clause 7 (1) (a). Respondent No. 4 filed a further rejoinder. It was not disputed, rather, admitted on all hands that at Naigaum School the training period was much shorter than the period of 18 months which continued at Nasik. If during the period of 10 years cadets on the basis of a shorter period of training were appointed to the Bombay Police Force without any specific order of the Government (although it must not be the case) it might have affected the validity of their appointment but not the fact that they had been so appointed on a shorter period of training.6. The High Court has committed an error in the interpretation of the provision contained in clause 7 (1) (a) of the Order. On transfer of any police officer from Greater Bombay to the District and vice versa, if his training had commenced on any date between the period of 1st May, 1939 to 1st June, 1949, then his seniority was to be determined vis-a-vis the police officer of the force to which he was transferred with reference to the dates on which their training commenced. It is not that in one case it will be the date of commencement of the training and in the other it will be the date of appointment, as seems to have been wrongly thought by the HighWe have no. doubt in our mind that even if there be any mistake or discrepancy in the seniority list which is found to be not in conformity with the interpretation put by us to clause 7 (1) (a) then that mistake or discrepancy will have to be removed sooner them later and the seniority list will be set at right accordingly.7. Ordinarily and generally the method of fixation of seniority as provided in sub-clause (b) of clause 7 (1) of the Order was the correct and proper method to be followed. But because of the special situation of appointment of some police officers during the period of 10 years on a shorter period of training a departure was made as provided in sub-clause (a). A cadet who received his full training for 18 months at Nasik for no. fault of his was appointed later than a cadet who started training later at Naigaum but was appointed earlier than the former. # There was nothing wrong, illegal or unreasonable in making a provision in sub-clause (a) that in such a situation the commencement of the period of training will be taken as the date for the purposes of fixation of seniority. There was a reasonable and rational nexus between the object and the rule. It was for the rule making authority to decide and to choose in such a situation - either the date of commencement of the training or the date of appointment. Taking the former date in the special circumstances seems to be reasonable and justified. # Such a provision cannot be said to be violative of Articles 14 and 16 of the Constitution.8. The third ground for declaring clause 7 (1) (a) ultra vires given by the High Court theoretically was correct but materials were placed before us from the various affidavits to show that hardly there was such a case which had got the advantage of the clause even after failure in the examination. There was one such case of hardship of not passing out the examination in time due to reasons beyond the control of the cadet. Clause 7 (1) (a), in our opinion, was not meant to give any undue advantage to a nondeserving police officer who failed to pass the training examination at the proper time. No. specific instance was brought to our notice where such advantage had been accorded.
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Canara Bank Vs. State Of Tamil Nadu | a notice in respect of the claim made by the appellant and, on actual examination of the records this position was conceded to by the learned counsel for the appellant. A contention was raised that the company had knowledge of the award and, therefore, non-service of the notice would not be fatal to the award made for payment by the Commissioner. The learned single Judge held that where law requires notice to be served and if the notice has not been served and a claim is foisted upon a party without such service of notice, there is clear violation of the principles of natural justice and an order passed in such a proceeding would be void. On that basis he took the view that the relief sought for by the appellant could not be granted and dismissed the writ petition. On appeal filed by the appellant, the Division Bench of the High Court considered the matter and, while agreeing with the learned single Judge, observed as under :- "As the undertaking of the company had vested in the Government, notice ought to have been directed to both the respondents therein in the claim proceeding and the Commissioner ought to have heard both of them before passing any order. The view expressed by the learned Judge that the order passed by the Commissioner is null and void inasmuch as notice was not served on the respondents is correct and no exception can be taken thereto." The Division Bench again stated as follows :- "It is contended that the communication discloses that the respondents had full knowledge of the entire proceedings before the Commissioner and they are not entitled to challenge the order of the Commissioner made in those proceedings in this Court. We are unable to accept this contention. The learned Judge has found from the records that there was no service of notice on either of the respondents and consequently, the entire proceedings of the Commissioner are vitiated." 3. The Division Bench on examination of the scheme of the Act particularly with reference to Sections 5(4), 8, 9, 16, 17, 20 and 26 of the Act, had no doubt that the liability of the Government under the provisions of the Act is to the extent only upto the total amount determined under Section 9 which the Government is bound to pay to the Commissioner for payments to the company. The Division Bench also noticed that the liability of the company continues to exist and it is not enforceable against the Government or the Government company. On that basis, the Division Bench dismissed the appeal. 4. Shri V.R. Reddy, the learned senior Advocate appearing for the appellant, contended that the view taken by the Division Bench of the High Court on the scheme of the enactment is plainly erroneous. He submitted that Section 5(4) of the Act while extinguishing rights against the Government or the undertaking arising out of the security made it clear that a secured creditor is nevertheless entitled to claim in accordance with his rights and interests, payment of the mortgage or other dues, in whole or in part out of the amounts specified in Section 9 and did not limit it only to the amounts specified in Section 9. He further pointed out that other provisions to which the learned Judges adverted to were only provisions which were made not to override the other provisions of the Act which was made clear in the expression "save as otherwise expressly provided in the Act". He further submitted that Section 26 is an independent provision and is not controlled by any other provisions of the Act. The interpretation placed by the Division Bench on Section 26 would render it otiose. The learned counsel appearing for the respondent, however, supported the view taken by the learned single Judge and the Division Bench of the High Court in the writ petition and writ appeal respectively. 5. It is no doubt true that Section 5(4) refers to rights of a secured creditor to make a claim in regard to the dues out of the amounts specified in Section 9, but the purpose of Section 5(4) if borne in mind it becomes clear that while extinguishing the rights of the secured creditor as against any property vested in the Government, a claim can be made for payment out of the amounts specified in Section 9. Section 26 in particular provides that if the dues arising out of secured loans obtained by the company from nationalised banks and public financial institutions during any period before the appointed day is not discharged fully by the Commissioner out of the amount paid to him under the Act, intimation will have to be given to the Government the extent of the liability which remains undischarged and the liability shall be assumed by the Government. We cannot without closer examination say that argument of the learned counsel for the appellant is without merit. However, we do not propose to consider or answer this aspect as we propose to rest our decision on another ground. 6. We have set out in the earlier part of this order that the learned single Judge on full investigation of the records found that notice to the company had not been given, which was admitted by the learned counsel for the appellant before the learned single Judge. Under the scheme of the Act it is clear that the company is also liable to make good the amounts which remain outstanding and, therefore, principles of natural justice also require that a notice should have been given to it. The view taken by the learned single Judge and accepted by the Division Bench to which we have adverted to is placed on sound footing. Therefore, we are of the view that the adjudication made by the Commissioner is void for want of notice to the company and, therefore, unenforceable and so the High Court was justified in refusing to grant the relief to the appellant. | 0[ds]5. It is no doubt true that Section 5(4) refers to rights of a secured creditor to make a claim in regard to the dues out of the amounts specified in Section 9, but the purpose of Section 5(4) if borne in mind it becomes clear that while extinguishing the rights of the secured creditor as against any property vested in the Government, a claim can be made for payment out of the amounts specified in Section 9. Section 26 in particular provides that if the dues arising out of secured loans obtained by the company from nationalised banks and public financial institutions during any period before the appointed day is not discharged fully by the Commissioner out of the amount paid to him under the Act, intimation will have to be given to the Government the extent of the liability which remains undischarged and the liability shall be assumed by the Government. We cannot without closer examination say that argument of the learned counsel for the appellant is without merit. However, we do not propose to consider or answer this aspect as we propose to rest our decision on another ground.We have set out in the earlier part of this order that the learned single Judge on full investigation of the records found that notice to the company had not been given, which was admitted by the learned counsel for the appellant before the learned single Judge. Under the scheme of the Act it is clear that the company is also liable to make good the amounts which remain outstanding and, therefore, principles of natural justice also require that a notice should have been given to it. The view taken by the learned single Judge and accepted by the Division Bench to which we have adverted to is placed on sound footing. Therefore, we are of the view that the adjudication made by the Commissioner is void for want of notice to the company and, therefore, unenforceable and so the High Court was justified in refusing to grant the relief to the appellant. | 0 | 1,539 | 373 | ### Instruction:
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a notice in respect of the claim made by the appellant and, on actual examination of the records this position was conceded to by the learned counsel for the appellant. A contention was raised that the company had knowledge of the award and, therefore, non-service of the notice would not be fatal to the award made for payment by the Commissioner. The learned single Judge held that where law requires notice to be served and if the notice has not been served and a claim is foisted upon a party without such service of notice, there is clear violation of the principles of natural justice and an order passed in such a proceeding would be void. On that basis he took the view that the relief sought for by the appellant could not be granted and dismissed the writ petition. On appeal filed by the appellant, the Division Bench of the High Court considered the matter and, while agreeing with the learned single Judge, observed as under :- "As the undertaking of the company had vested in the Government, notice ought to have been directed to both the respondents therein in the claim proceeding and the Commissioner ought to have heard both of them before passing any order. The view expressed by the learned Judge that the order passed by the Commissioner is null and void inasmuch as notice was not served on the respondents is correct and no exception can be taken thereto." The Division Bench again stated as follows :- "It is contended that the communication discloses that the respondents had full knowledge of the entire proceedings before the Commissioner and they are not entitled to challenge the order of the Commissioner made in those proceedings in this Court. We are unable to accept this contention. The learned Judge has found from the records that there was no service of notice on either of the respondents and consequently, the entire proceedings of the Commissioner are vitiated." 3. The Division Bench on examination of the scheme of the Act particularly with reference to Sections 5(4), 8, 9, 16, 17, 20 and 26 of the Act, had no doubt that the liability of the Government under the provisions of the Act is to the extent only upto the total amount determined under Section 9 which the Government is bound to pay to the Commissioner for payments to the company. The Division Bench also noticed that the liability of the company continues to exist and it is not enforceable against the Government or the Government company. On that basis, the Division Bench dismissed the appeal. 4. Shri V.R. Reddy, the learned senior Advocate appearing for the appellant, contended that the view taken by the Division Bench of the High Court on the scheme of the enactment is plainly erroneous. He submitted that Section 5(4) of the Act while extinguishing rights against the Government or the undertaking arising out of the security made it clear that a secured creditor is nevertheless entitled to claim in accordance with his rights and interests, payment of the mortgage or other dues, in whole or in part out of the amounts specified in Section 9 and did not limit it only to the amounts specified in Section 9. He further pointed out that other provisions to which the learned Judges adverted to were only provisions which were made not to override the other provisions of the Act which was made clear in the expression "save as otherwise expressly provided in the Act". He further submitted that Section 26 is an independent provision and is not controlled by any other provisions of the Act. The interpretation placed by the Division Bench on Section 26 would render it otiose. The learned counsel appearing for the respondent, however, supported the view taken by the learned single Judge and the Division Bench of the High Court in the writ petition and writ appeal respectively. 5. It is no doubt true that Section 5(4) refers to rights of a secured creditor to make a claim in regard to the dues out of the amounts specified in Section 9, but the purpose of Section 5(4) if borne in mind it becomes clear that while extinguishing the rights of the secured creditor as against any property vested in the Government, a claim can be made for payment out of the amounts specified in Section 9. Section 26 in particular provides that if the dues arising out of secured loans obtained by the company from nationalised banks and public financial institutions during any period before the appointed day is not discharged fully by the Commissioner out of the amount paid to him under the Act, intimation will have to be given to the Government the extent of the liability which remains undischarged and the liability shall be assumed by the Government. We cannot without closer examination say that argument of the learned counsel for the appellant is without merit. However, we do not propose to consider or answer this aspect as we propose to rest our decision on another ground. 6. We have set out in the earlier part of this order that the learned single Judge on full investigation of the records found that notice to the company had not been given, which was admitted by the learned counsel for the appellant before the learned single Judge. Under the scheme of the Act it is clear that the company is also liable to make good the amounts which remain outstanding and, therefore, principles of natural justice also require that a notice should have been given to it. The view taken by the learned single Judge and accepted by the Division Bench to which we have adverted to is placed on sound footing. Therefore, we are of the view that the adjudication made by the Commissioner is void for want of notice to the company and, therefore, unenforceable and so the High Court was justified in refusing to grant the relief to the appellant.
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0
### Explanation:
5. It is no doubt true that Section 5(4) refers to rights of a secured creditor to make a claim in regard to the dues out of the amounts specified in Section 9, but the purpose of Section 5(4) if borne in mind it becomes clear that while extinguishing the rights of the secured creditor as against any property vested in the Government, a claim can be made for payment out of the amounts specified in Section 9. Section 26 in particular provides that if the dues arising out of secured loans obtained by the company from nationalised banks and public financial institutions during any period before the appointed day is not discharged fully by the Commissioner out of the amount paid to him under the Act, intimation will have to be given to the Government the extent of the liability which remains undischarged and the liability shall be assumed by the Government. We cannot without closer examination say that argument of the learned counsel for the appellant is without merit. However, we do not propose to consider or answer this aspect as we propose to rest our decision on another ground.We have set out in the earlier part of this order that the learned single Judge on full investigation of the records found that notice to the company had not been given, which was admitted by the learned counsel for the appellant before the learned single Judge. Under the scheme of the Act it is clear that the company is also liable to make good the amounts which remain outstanding and, therefore, principles of natural justice also require that a notice should have been given to it. The view taken by the learned single Judge and accepted by the Division Bench to which we have adverted to is placed on sound footing. Therefore, we are of the view that the adjudication made by the Commissioner is void for want of notice to the company and, therefore, unenforceable and so the High Court was justified in refusing to grant the relief to the appellant.
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Ram Chander Talwar Vs. Devender Kumar Talwar | 1. Heard counsel appearing for the appellants. Appellant no.1, who was the nominee in the bank account held by his deceased mother claims full rights over the money lying in the account, to the exclusion of the respondent who is none else than his full brother. The claim is based on section 45 ZA of the Banking Regulation Act, which according to him, makes the nominee of the depositor the sole beneficiary vested with all the rights of sole depositor. Mr. Swetank Shantanu, counsel appearing for the appellants, strenuously argued that by virtue of sub-section 2 of section 45 ZA, the nominee of the depositor, after the death of depositor acquires all his/her rights to the express exclusion of all other persons and, therefore, the respondent can not lay any claim to the money in the account or in regard to the articles that might be lying in the bank locker held by their deceased mother. The submission is quite fallacious and is based on a complete misconception of the provision of the Act. Sub-section 2 of the 45ZA, reads as follows:- 45ZA xxx xxx xxx xxx (2) Notwithstanding anything contained in any other law for the time being in force or in any disposition, whether testamentary or otherwise, in respect of such deposit, where a nomination made in the prescribed manner purports to confer on any person the right to receive the amount to deposit from the banking company, the nominee shall, on the death of the sole depositor or, as the case may be, on the death of all the depositors, become entitled to all the rights of the sole depositor or, as the case may be, of the depositors, in relation to such deposit to the exclusion of all other persons, unless the nomination is varied or cancelled in the prescribed manner. xxx xxx xxx xxx (emphasis added) Section 45ZA (2) merely puts the nominee in the shoes of the depositor after his death and clothes him with the exclusive right to receive the money lying in the account. It gives him all the rights of the depositor so far as the depositors account is concerned. But it by no stretch of imagination make the nominee the owner of the money lying in the account. It needs to be remembered that the Banking Regulation Act is enacted to consolidate and amend the law relating to banking. It is in no way concerned with the question of succession. All the monies receivable by the nominee by virtue of section 45 ZA(2) would, therefore, form part of the estate of the deceased depositor and devolve according to the rule of succession to which the depositor may be governed. We find that the High Court has rightly rejected the appellants claim relying upon the decision of this Court in V.N. Khanchandani & Anr. v. V.L. Khanchandani & Anr., (2000) 6 SCC 724. The provision under Section 6 (1) of the Government Saving Certificate Act, 1959 is materially and substantially the same as the provision of Section 45ZA (2) of the Banking Regulation Act, 1949, and the decision in V.N. Khanchandani applies with full force to the facts of this case. | 0[ds]Section 45ZA (2) merely puts the nominee in the shoes of the depositor after his death and clothes him with the exclusive right to receive the money lying in the account. It gives him all the rights of the depositor so far as the depositors account is concerned. But it by no stretch of imagination make the nominee the owner of the money lying in the account. It needs to be remembered that the Banking Regulation Act is enacted to consolidate and amend the law relating to banking. It is in no way concerned with the question of succession. All the monies receivable by the nominee by virtue of section 45 ZA(2) would, therefore, form part of the estate of the deceased depositor and devolve according to the rule of succession to which the depositor may be governed. We find that the High Court has rightly rejected the appellants claim relying upon the decision of this Court in V.N. Khanchandani & Anr. v. V.L. Khanchandani & Anr., (2000) 6 SCC 724. The provision under Section 6 (1) of the Government Saving Certificate Act, 1959 is materially and substantially the same as the provision of Section 45ZA (2) of the Banking Regulation Act, 1949, and the decision in V.N. Khanchandani applies with full force to the facts of this case. | 0 | 595 | 252 | ### 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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1. Heard counsel appearing for the appellants. Appellant no.1, who was the nominee in the bank account held by his deceased mother claims full rights over the money lying in the account, to the exclusion of the respondent who is none else than his full brother. The claim is based on section 45 ZA of the Banking Regulation Act, which according to him, makes the nominee of the depositor the sole beneficiary vested with all the rights of sole depositor. Mr. Swetank Shantanu, counsel appearing for the appellants, strenuously argued that by virtue of sub-section 2 of section 45 ZA, the nominee of the depositor, after the death of depositor acquires all his/her rights to the express exclusion of all other persons and, therefore, the respondent can not lay any claim to the money in the account or in regard to the articles that might be lying in the bank locker held by their deceased mother. The submission is quite fallacious and is based on a complete misconception of the provision of the Act. Sub-section 2 of the 45ZA, reads as follows:- 45ZA xxx xxx xxx xxx (2) Notwithstanding anything contained in any other law for the time being in force or in any disposition, whether testamentary or otherwise, in respect of such deposit, where a nomination made in the prescribed manner purports to confer on any person the right to receive the amount to deposit from the banking company, the nominee shall, on the death of the sole depositor or, as the case may be, on the death of all the depositors, become entitled to all the rights of the sole depositor or, as the case may be, of the depositors, in relation to such deposit to the exclusion of all other persons, unless the nomination is varied or cancelled in the prescribed manner. xxx xxx xxx xxx (emphasis added) Section 45ZA (2) merely puts the nominee in the shoes of the depositor after his death and clothes him with the exclusive right to receive the money lying in the account. It gives him all the rights of the depositor so far as the depositors account is concerned. But it by no stretch of imagination make the nominee the owner of the money lying in the account. It needs to be remembered that the Banking Regulation Act is enacted to consolidate and amend the law relating to banking. It is in no way concerned with the question of succession. All the monies receivable by the nominee by virtue of section 45 ZA(2) would, therefore, form part of the estate of the deceased depositor and devolve according to the rule of succession to which the depositor may be governed. We find that the High Court has rightly rejected the appellants claim relying upon the decision of this Court in V.N. Khanchandani & Anr. v. V.L. Khanchandani & Anr., (2000) 6 SCC 724. The provision under Section 6 (1) of the Government Saving Certificate Act, 1959 is materially and substantially the same as the provision of Section 45ZA (2) of the Banking Regulation Act, 1949, and the decision in V.N. Khanchandani applies with full force to the facts of this case.
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0
### Explanation:
Section 45ZA (2) merely puts the nominee in the shoes of the depositor after his death and clothes him with the exclusive right to receive the money lying in the account. It gives him all the rights of the depositor so far as the depositors account is concerned. But it by no stretch of imagination make the nominee the owner of the money lying in the account. It needs to be remembered that the Banking Regulation Act is enacted to consolidate and amend the law relating to banking. It is in no way concerned with the question of succession. All the monies receivable by the nominee by virtue of section 45 ZA(2) would, therefore, form part of the estate of the deceased depositor and devolve according to the rule of succession to which the depositor may be governed. We find that the High Court has rightly rejected the appellants claim relying upon the decision of this Court in V.N. Khanchandani & Anr. v. V.L. Khanchandani & Anr., (2000) 6 SCC 724. The provision under Section 6 (1) of the Government Saving Certificate Act, 1959 is materially and substantially the same as the provision of Section 45ZA (2) of the Banking Regulation Act, 1949, and the decision in V.N. Khanchandani applies with full force to the facts of this case.
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Commissioner of Central Excise Vs. ASCU Ltd | view to rectifying any mistake apparent from the record, amend any order passed by it under Sub-section (1) and shall make such amendments if the mistake is brought to its notice by the (Commissioner of Central Excise) or the other party to the appeal :Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party, shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard." 5. At this stage it must be mentioned that under the Act there is no power of review available to the Tribunal. The only power available is the power of rectification of a mistake apparent from the record.6. Mr. S.K. Bagaria, learned Counsel for the respondents had drawn our attention to the case of Collector of Central Excise, Calcutta v. Pradyumna Steel Ltd., 1996 (82) ELT 441 (SC) wherein by a cryptic order, it has been mentioned that even if reliance is placed on a wrong provision of law, so long as power can be exercised under a different provision, then the power does not get invalidated. It is held that the exercise of the power under a wrong provision is error apparent on the face of the record. In our view, this judgment has no relevance and is of no assistance to the question before us. 7. This Court has in two judgments viz. T.S. Balaram, Income Tax Officer, Company Circle IV, Bombay v. Volkart Brothers, Bombay, 1971 (2) SCC 526 and Commissioner of Income Tax (CNTL), Ludhiana v. Hero Cycles Pvt. Ltd., Ludhiana 1997 (8) SCC 502 considered the extent to which power can be exercised under Section 154 of the Income Tax Act, 1961. Section 154 is pari materm to Section 35C(2). In both these decisions, it has been held that a mistake apparent on the face of the record must be an obvious and patent mistake. It is held that "mistake apparent from the record" cannot be something which would have to be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. It has been held that a decision on a debatable point of law cannot be a "mistake apparent from the record". 8. The application under Section 35C(2) was on the ground that the Tribunal had in its order dated 24th July, 1998 taken into consideration the reports of Alipore Test House and the Central Revenue Control Laboratory. It was claimed that these reports did not pertain to any product of the respondent company and that these reports could not have been used. 9. When the application for rectification came up for consideration, the Vice President opined that the application was in fact an application for review and re-consideration. The Vice President held that the Tribunal did not have any power of review. He held that the application should be rejected. The Judicial Member took a contrary view. The Judicial Member, inter alia, observed in her order, as follows :- "... I fully agree with the observations made by the Honble Vice President that a conscious decision given by the Tribunal based upon appreciation of evidence on record cannot be put to question by either side by pointing out to the errors and seeking their rectification and the proper course available is to challenge the order before the higher appellate authority........ Even in the absence of these test reports, the Tribunal might have come to the same conclusion, but in my views reliance on the reports is an error apparent on the record and needs rectification. ....... The applicants in the garb of rectification of mistake cannot seek review of the Order. ..." 10. In spite of so observing, the Judicial Member held that as the Tribunal had relied upon the test reports, the order should be recalled and the appeal should be re-fixed for hearing. 11. As there was difference of opinion, the application was referred to a third member. The third member has concurred with the opinion of the Judicial Member. Therefore, by the final order dated 19th April, 1999, the earlier order dated 24th July, 1998 has been set aside. The appeal has been recalled for re-consideration. 12. It may be noted that in the original order, there was decision even on the question of limitation in respect of which there was no error apparent on the face of the record even that portion of the order has been set aside.13. As stated above, the scope of correction which can be made by the Tribunal under Section 35C(2) is limited. Undoubtedly if a decision is based solely on material which is irrelevant or which could not have been used then possibly it could be said that there is a mistake apparent from the record. However, if a decision is based on more than one material, then merely because in the process of arriving at the final decision, reliance was placed on some material which could not have been used it can never be said that in the final decision there is a mistake apparent from the record. This is because the final opinion could also have been based on the other material which was relevant and which could be used.14. In this case, admittedly while passing the order dated 24th July, 1998, apart from the reports, reliance had also been placed upon the literature of the respondents themselves. The Judicial Member notes that reliance had been placed upon this literature. Judicial Member therefore records, as noted above, that the Tribunal may again come to the same conclusion. If that be so, then it is clear that there is no mistake apparent on the record. In such a case there can be no rectification under Section 35C(2). We, therefore, set aside the impugned order and restore the original order dated 24th July, 1998. | 1[ds]10. In spite of so observing, the Judicial Member held that as the Tribunal had relied upon the test reports, the order should be recalled and the appeal should beIt may be noted that in the original order, there was decision even on the question of limitation in respect of which there was no error apparent on the face of the record even that portion of the order has been set aside.13. As stated above, the scope of correction which can be made by the Tribunal under Section 35C(2) is limited. Undoubtedly if a decision is based solely on material which is irrelevant or which could not have been used then possibly it could be said that there is a mistake apparent from the record. However, if a decision is based on more than one material, then merely because in the process of arriving at the final decision, reliance was placed on some material which could not have been used it can never be said that in the final decision there is a mistake apparent from the record. This is because the final opinion could also have been based on the other material which was relevant and which could be used.14. In this case, admittedly while passing the order dated 24th July, 1998, apart from the reports, reliance had also been placed upon the literature of the respondents themselves. The Judicial Member notes that reliance had been placed upon this literature. Judicial Member therefore records, as noted above, that the Tribunal may again come to the same conclusion. If that be so, then it is clear that there is no mistake apparent on the record. In such a case there can be no rectification under Section 35C(2). We, therefore, set aside the impugned order and restore the original order dated 24th July, 1998. | 1 | 1,415 | 342 | ### 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:
view to rectifying any mistake apparent from the record, amend any order passed by it under Sub-section (1) and shall make such amendments if the mistake is brought to its notice by the (Commissioner of Central Excise) or the other party to the appeal :Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party, shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard." 5. At this stage it must be mentioned that under the Act there is no power of review available to the Tribunal. The only power available is the power of rectification of a mistake apparent from the record.6. Mr. S.K. Bagaria, learned Counsel for the respondents had drawn our attention to the case of Collector of Central Excise, Calcutta v. Pradyumna Steel Ltd., 1996 (82) ELT 441 (SC) wherein by a cryptic order, it has been mentioned that even if reliance is placed on a wrong provision of law, so long as power can be exercised under a different provision, then the power does not get invalidated. It is held that the exercise of the power under a wrong provision is error apparent on the face of the record. In our view, this judgment has no relevance and is of no assistance to the question before us. 7. This Court has in two judgments viz. T.S. Balaram, Income Tax Officer, Company Circle IV, Bombay v. Volkart Brothers, Bombay, 1971 (2) SCC 526 and Commissioner of Income Tax (CNTL), Ludhiana v. Hero Cycles Pvt. Ltd., Ludhiana 1997 (8) SCC 502 considered the extent to which power can be exercised under Section 154 of the Income Tax Act, 1961. Section 154 is pari materm to Section 35C(2). In both these decisions, it has been held that a mistake apparent on the face of the record must be an obvious and patent mistake. It is held that "mistake apparent from the record" cannot be something which would have to be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. It has been held that a decision on a debatable point of law cannot be a "mistake apparent from the record". 8. The application under Section 35C(2) was on the ground that the Tribunal had in its order dated 24th July, 1998 taken into consideration the reports of Alipore Test House and the Central Revenue Control Laboratory. It was claimed that these reports did not pertain to any product of the respondent company and that these reports could not have been used. 9. When the application for rectification came up for consideration, the Vice President opined that the application was in fact an application for review and re-consideration. The Vice President held that the Tribunal did not have any power of review. He held that the application should be rejected. The Judicial Member took a contrary view. The Judicial Member, inter alia, observed in her order, as follows :- "... I fully agree with the observations made by the Honble Vice President that a conscious decision given by the Tribunal based upon appreciation of evidence on record cannot be put to question by either side by pointing out to the errors and seeking their rectification and the proper course available is to challenge the order before the higher appellate authority........ Even in the absence of these test reports, the Tribunal might have come to the same conclusion, but in my views reliance on the reports is an error apparent on the record and needs rectification. ....... The applicants in the garb of rectification of mistake cannot seek review of the Order. ..." 10. In spite of so observing, the Judicial Member held that as the Tribunal had relied upon the test reports, the order should be recalled and the appeal should be re-fixed for hearing. 11. As there was difference of opinion, the application was referred to a third member. The third member has concurred with the opinion of the Judicial Member. Therefore, by the final order dated 19th April, 1999, the earlier order dated 24th July, 1998 has been set aside. The appeal has been recalled for re-consideration. 12. It may be noted that in the original order, there was decision even on the question of limitation in respect of which there was no error apparent on the face of the record even that portion of the order has been set aside.13. As stated above, the scope of correction which can be made by the Tribunal under Section 35C(2) is limited. Undoubtedly if a decision is based solely on material which is irrelevant or which could not have been used then possibly it could be said that there is a mistake apparent from the record. However, if a decision is based on more than one material, then merely because in the process of arriving at the final decision, reliance was placed on some material which could not have been used it can never be said that in the final decision there is a mistake apparent from the record. This is because the final opinion could also have been based on the other material which was relevant and which could be used.14. In this case, admittedly while passing the order dated 24th July, 1998, apart from the reports, reliance had also been placed upon the literature of the respondents themselves. The Judicial Member notes that reliance had been placed upon this literature. Judicial Member therefore records, as noted above, that the Tribunal may again come to the same conclusion. If that be so, then it is clear that there is no mistake apparent on the record. In such a case there can be no rectification under Section 35C(2). We, therefore, set aside the impugned order and restore the original order dated 24th July, 1998.
### Response:
1
### Explanation:
10. In spite of so observing, the Judicial Member held that as the Tribunal had relied upon the test reports, the order should be recalled and the appeal should beIt may be noted that in the original order, there was decision even on the question of limitation in respect of which there was no error apparent on the face of the record even that portion of the order has been set aside.13. As stated above, the scope of correction which can be made by the Tribunal under Section 35C(2) is limited. Undoubtedly if a decision is based solely on material which is irrelevant or which could not have been used then possibly it could be said that there is a mistake apparent from the record. However, if a decision is based on more than one material, then merely because in the process of arriving at the final decision, reliance was placed on some material which could not have been used it can never be said that in the final decision there is a mistake apparent from the record. This is because the final opinion could also have been based on the other material which was relevant and which could be used.14. In this case, admittedly while passing the order dated 24th July, 1998, apart from the reports, reliance had also been placed upon the literature of the respondents themselves. The Judicial Member notes that reliance had been placed upon this literature. Judicial Member therefore records, as noted above, that the Tribunal may again come to the same conclusion. If that be so, then it is clear that there is no mistake apparent on the record. In such a case there can be no rectification under Section 35C(2). We, therefore, set aside the impugned order and restore the original order dated 24th July, 1998.
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Employers Of Thungabhadra Industries Ltd Vs. The Workmen And Another | erroneous. The judgment of this Court in Management of Bangalore Woollen, Cotton and Silk Mills CO. Ltd. case, (1968) 1 SCR 581 =(AIR 1968 SC 585 ) though referred to, has not been properly appreciated. The Division Bench missed the important circumstance that the union must establish the point of time when the previous award has been terminated. Therefore, the question that should have been tackled was whether on March 8, 1968, when the charter of demands was submitted, there has been a proper termination of the previous award, as required under Section 19 (6). The fact that the workmen went on a strike subsequently may indicate that they are dissatisfied with the refusal of the management to accede to their demands. But that will not satisfy the requirement under Section 19 (6). The fact that the appellant participated in the conciliation proceedings held by the Conciliation Officer, which is also on a subsequent date, is also of no importance. When a strike is on, it is obligatory on the part of the Conciliation Officer to initiate conciliation proceedings and the management had acted properly in participating in the conciliation proceedings. But it is to be noted that in the report dated June 24, l 968, the Conciliation Officer had clearly stated that with regard to the demand for categorisation and scales of pay, the management were not inclined to consider the same, as they had been fixed by the award in I D. No. 20 of 1957 and that the said award had not been terminated so far. Therefore the stand of the appellant as on April 30, 1968, the date when the conciliation proceedings were held, was that the previous award had not been terminated by the union.12. Mr.Ramamurthi, learned counsel for some of the workmen, pointed out that the serving of a charter of demands clearly shows that the union had terminated the award.In our opinion, this contention cannot be our accepted, because it does not satisfy the requirement of Section 19 (6).This Court has held in Management of Bangalore Woollen, Cotton and Silk Mills Co. Ltd. case, (1968) 1 SCR 581 = (AIR 1968 SC 585 ),that regarding the termination of an award, it must be fixed with reference to a particular date so as to enable a court to come to the conclusion that the party giving that intimation has expressed its intention to terminate the award.Such certainty regarding the date is quite essential because the period of two months, after the expiry of which the award ceases to be binding on the parties, will have to be reckoned from the date of such clear intimation regarding the termination of the award.13. Though there is no particular form in which the notice of termination has to be given, still it is absolutely essential that the intention to terminate the award, with reference to a particular date, must be made clear by the parties, who set up a case of termination. In the instant case, after going through the charter of demands, we are satisfied that it does not give any indication that the previous award has been terminated. Even assuming that by the charter of demands on March 8, 1968, the award was terminated, nevertheless, it Will continue to be in force for a further period of two months from that date under Section 19 (6). The fact that the workmen went on strike from April 15, 1968, even before the expiry of this two months period, is an indication that they were dissatisfied with the refusal by the management to accede to their demands. If really they had terminated the award on March 8, 1968, it is unreasonable to hold that the workmen would have gone on an illegal strike before the expiry of two months from the said date.14. The decision in the Work men of Western India Match Co. Ltd. v. The Western India Match Co. Ltd. (1963) 2 SCR 27 which has been relied on by the Division Bench and also by Mr. Ramamurthi before us, ha been explained by this Court in Management of Bangalore Woollen, Cotton Silk Mills Co. Ltd. case, (1968) 1 SCR 581 = (AIR 1968 SC 585 ). The distinctive features and the particular circumstances under which the said decision was given, have not been properly appreciated by the Division Bench Mr. Ramamurthi urged that in The Workmen of Western India Match Co Ltd. case, this Court has accepted the position that the charter of demand, and various representations made by the workmen, which were inconsistent with an award already in force, will lead to the inference of an intention by the workmen to terminate the previous award.We are not inclined to accept this contention of the learned counsel. The said decision of this Court did not accept the position that the mere making of demands, without anything more, will amount to a termination of a previous award. On the other hand ignoring the charter of demands as well as the various representations made by the union, this Court in the said decision held that the letter dated 8-4-1957, written by the union, had the effect of giving notice to the management about termination of the settlement. It was after fixing this date as the date of termination of the settlement, this Court further held that the reference made by the State Government long after the expiry of two months from the said date, was competent. In fact the said decision is against the view taken by the Division Bench of the High Court in the case before us and the view which was sought to be supported by Mr. Ramamurthi.15. We are not inclined to agree with the view of the Division Bench that there has been a termination of the award in I. D. No. 20 of 1957. If so, the Industrial Tribunal as well as the learned single Judge were right in holding that the present reference dated July 25, 1958, is incompetent. | 1[ds]11.The approach made by the learned Judges of the Division Bench is erroneous. The judgment of this Court in Management of Bangalore Woollen, Cotton and Silk Mills CO. Ltd. case, (1968) 1 SCR 581 =(AIR 1968 SC 585 ) though referred to, has not been properly appreciated. The Division Bench missed the important circumstance that the union must establish the point of time when the previous award has been terminated. Therefore, the question that should have been tackled was whether on March 8, 1968, when the charter of demands was submitted, there has been a proper termination of the previous award, as required under Section 19 (6). The fact that the workmen went on a strike subsequently may indicate that they are dissatisfied with the refusal of the management to accede to their demands. But that will not satisfy the requirement under Section 19 (6). The fact that the appellant participated in the conciliation proceedings held by the Conciliation Officer, which is also on a subsequent date, is also of no importance. When a strike is on, it is obligatory on the part of the Conciliation Officer to initiate conciliation proceedings and the management had acted properly in participating in the conciliation proceedings. But it is to be noted that in the report dated June 24, l 968, the Conciliation Officer had clearly stated that with regard to the demand for categorisation and scales of pay, the management were not inclined to consider the same, as they had been fixed by the award in I D. No. 20 of 1957 and that the said award had not been terminated so far. Therefore the stand of the appellant as on April 30, 1968, the date when the conciliation proceedings were held, was that the previous award had not been terminated by theour opinion, this contention cannot be our accepted, because it does not satisfy the requirement of Section 19 (6).This Court has held in Management of Bangalore Woollen, Cotton and Silk Mills Co. Ltd. case, (1968) 1 SCR 581 = (AIR 1968 SC 585 ),that regarding the termination of an award, it must be fixed with reference to a particular date so as to enable a court to come to the conclusion that the party giving that intimation has expressed its intention to terminate the award.Such certainty regarding the date is quite essential because the period of two months, after the expiry of which the award ceases to be binding on the parties, will have to be reckoned from the date of such clear intimation regarding the termination of the award.13. Though there is no particular form in which the notice of termination has to be given, still it is absolutely essential that the intention to terminate the award, with reference to a particular date, must be made clear by the parties, who set up a case of termination. In the instant case, after going through the charter of demands, we are satisfied that it does not give any indication that the previous award has been terminated. Even assuming that by the charter of demands on March 8, 1968, the award was terminated, nevertheless, it Will continue to be in force for a further period of two months from that date under Section 19 (6). The fact that the workmen went on strike from April 15, 1968, even before the expiry of this two months period, is an indication that they were dissatisfied with the refusal by the management to accede to their demands. If really they had terminated the award on March 8, 1968, it is unreasonable to hold that the workmen would have gone on an illegal strike before the expiry of two months from the said date.We are not inclined to agree with the view of the Division Bench that there has been a termination of the award in I. D. No. 20 of 1957. If so, the Industrial Tribunal as well as the learned single Judge were right in holding that the present reference dated July 25, 1958, is incompetent. | 1 | 2,570 | 757 | ### 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:
erroneous. The judgment of this Court in Management of Bangalore Woollen, Cotton and Silk Mills CO. Ltd. case, (1968) 1 SCR 581 =(AIR 1968 SC 585 ) though referred to, has not been properly appreciated. The Division Bench missed the important circumstance that the union must establish the point of time when the previous award has been terminated. Therefore, the question that should have been tackled was whether on March 8, 1968, when the charter of demands was submitted, there has been a proper termination of the previous award, as required under Section 19 (6). The fact that the workmen went on a strike subsequently may indicate that they are dissatisfied with the refusal of the management to accede to their demands. But that will not satisfy the requirement under Section 19 (6). The fact that the appellant participated in the conciliation proceedings held by the Conciliation Officer, which is also on a subsequent date, is also of no importance. When a strike is on, it is obligatory on the part of the Conciliation Officer to initiate conciliation proceedings and the management had acted properly in participating in the conciliation proceedings. But it is to be noted that in the report dated June 24, l 968, the Conciliation Officer had clearly stated that with regard to the demand for categorisation and scales of pay, the management were not inclined to consider the same, as they had been fixed by the award in I D. No. 20 of 1957 and that the said award had not been terminated so far. Therefore the stand of the appellant as on April 30, 1968, the date when the conciliation proceedings were held, was that the previous award had not been terminated by the union.12. Mr.Ramamurthi, learned counsel for some of the workmen, pointed out that the serving of a charter of demands clearly shows that the union had terminated the award.In our opinion, this contention cannot be our accepted, because it does not satisfy the requirement of Section 19 (6).This Court has held in Management of Bangalore Woollen, Cotton and Silk Mills Co. Ltd. case, (1968) 1 SCR 581 = (AIR 1968 SC 585 ),that regarding the termination of an award, it must be fixed with reference to a particular date so as to enable a court to come to the conclusion that the party giving that intimation has expressed its intention to terminate the award.Such certainty regarding the date is quite essential because the period of two months, after the expiry of which the award ceases to be binding on the parties, will have to be reckoned from the date of such clear intimation regarding the termination of the award.13. Though there is no particular form in which the notice of termination has to be given, still it is absolutely essential that the intention to terminate the award, with reference to a particular date, must be made clear by the parties, who set up a case of termination. In the instant case, after going through the charter of demands, we are satisfied that it does not give any indication that the previous award has been terminated. Even assuming that by the charter of demands on March 8, 1968, the award was terminated, nevertheless, it Will continue to be in force for a further period of two months from that date under Section 19 (6). The fact that the workmen went on strike from April 15, 1968, even before the expiry of this two months period, is an indication that they were dissatisfied with the refusal by the management to accede to their demands. If really they had terminated the award on March 8, 1968, it is unreasonable to hold that the workmen would have gone on an illegal strike before the expiry of two months from the said date.14. The decision in the Work men of Western India Match Co. Ltd. v. The Western India Match Co. Ltd. (1963) 2 SCR 27 which has been relied on by the Division Bench and also by Mr. Ramamurthi before us, ha been explained by this Court in Management of Bangalore Woollen, Cotton Silk Mills Co. Ltd. case, (1968) 1 SCR 581 = (AIR 1968 SC 585 ). The distinctive features and the particular circumstances under which the said decision was given, have not been properly appreciated by the Division Bench Mr. Ramamurthi urged that in The Workmen of Western India Match Co Ltd. case, this Court has accepted the position that the charter of demand, and various representations made by the workmen, which were inconsistent with an award already in force, will lead to the inference of an intention by the workmen to terminate the previous award.We are not inclined to accept this contention of the learned counsel. The said decision of this Court did not accept the position that the mere making of demands, without anything more, will amount to a termination of a previous award. On the other hand ignoring the charter of demands as well as the various representations made by the union, this Court in the said decision held that the letter dated 8-4-1957, written by the union, had the effect of giving notice to the management about termination of the settlement. It was after fixing this date as the date of termination of the settlement, this Court further held that the reference made by the State Government long after the expiry of two months from the said date, was competent. In fact the said decision is against the view taken by the Division Bench of the High Court in the case before us and the view which was sought to be supported by Mr. Ramamurthi.15. We are not inclined to agree with the view of the Division Bench that there has been a termination of the award in I. D. No. 20 of 1957. If so, the Industrial Tribunal as well as the learned single Judge were right in holding that the present reference dated July 25, 1958, is incompetent.
### Response:
1
### Explanation:
11.The approach made by the learned Judges of the Division Bench is erroneous. The judgment of this Court in Management of Bangalore Woollen, Cotton and Silk Mills CO. Ltd. case, (1968) 1 SCR 581 =(AIR 1968 SC 585 ) though referred to, has not been properly appreciated. The Division Bench missed the important circumstance that the union must establish the point of time when the previous award has been terminated. Therefore, the question that should have been tackled was whether on March 8, 1968, when the charter of demands was submitted, there has been a proper termination of the previous award, as required under Section 19 (6). The fact that the workmen went on a strike subsequently may indicate that they are dissatisfied with the refusal of the management to accede to their demands. But that will not satisfy the requirement under Section 19 (6). The fact that the appellant participated in the conciliation proceedings held by the Conciliation Officer, which is also on a subsequent date, is also of no importance. When a strike is on, it is obligatory on the part of the Conciliation Officer to initiate conciliation proceedings and the management had acted properly in participating in the conciliation proceedings. But it is to be noted that in the report dated June 24, l 968, the Conciliation Officer had clearly stated that with regard to the demand for categorisation and scales of pay, the management were not inclined to consider the same, as they had been fixed by the award in I D. No. 20 of 1957 and that the said award had not been terminated so far. Therefore the stand of the appellant as on April 30, 1968, the date when the conciliation proceedings were held, was that the previous award had not been terminated by theour opinion, this contention cannot be our accepted, because it does not satisfy the requirement of Section 19 (6).This Court has held in Management of Bangalore Woollen, Cotton and Silk Mills Co. Ltd. case, (1968) 1 SCR 581 = (AIR 1968 SC 585 ),that regarding the termination of an award, it must be fixed with reference to a particular date so as to enable a court to come to the conclusion that the party giving that intimation has expressed its intention to terminate the award.Such certainty regarding the date is quite essential because the period of two months, after the expiry of which the award ceases to be binding on the parties, will have to be reckoned from the date of such clear intimation regarding the termination of the award.13. Though there is no particular form in which the notice of termination has to be given, still it is absolutely essential that the intention to terminate the award, with reference to a particular date, must be made clear by the parties, who set up a case of termination. In the instant case, after going through the charter of demands, we are satisfied that it does not give any indication that the previous award has been terminated. Even assuming that by the charter of demands on March 8, 1968, the award was terminated, nevertheless, it Will continue to be in force for a further period of two months from that date under Section 19 (6). The fact that the workmen went on strike from April 15, 1968, even before the expiry of this two months period, is an indication that they were dissatisfied with the refusal by the management to accede to their demands. If really they had terminated the award on March 8, 1968, it is unreasonable to hold that the workmen would have gone on an illegal strike before the expiry of two months from the said date.We are not inclined to agree with the view of the Division Bench that there has been a termination of the award in I. D. No. 20 of 1957. If so, the Industrial Tribunal as well as the learned single Judge were right in holding that the present reference dated July 25, 1958, is incompetent.
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George Thomas Vs. Bombay Tyres International Limited | labour practice under Items 4 (f) of Schedule II and Items 9 and 10 of Schedule IV of the Act. ( 6 ) IT is submitted on behalf of the Petitioner that the petitioner made representation through the Trade Union for payment of the accident benefit and resumption of duty in the Respondents company. However, the Respondent adopted delaying tactics and kept harassing the petitioner and complied with neither of the requests and so the petitioner approached the Director of Industrial Safety and Health and requested their assistance in arriving at a solution in the matter. It is the case of the petitioner that the Personnel Manager of the Company Shri Vijay Kumar on October 6, 1992 advised the petitioner to resume duty with an assurance that the question of payment of accident benefit would be settled later and so by relying on the assurance made by the Personnel Manager, the petitioner resumed duty and until February 1993, the petitioner was given light work in the lubrication department. However, thereafter the Maintenance Manager of the Respondents company Mr. Shamim Gandhi told the petitioner to forget about his demand for accident benefit and promised the petitioner to give light work which the petitioner refused and therefore, he was made to sit for 8 hours of the day in the Time Office without giving any Work, which continued till June 30, 1993. On July 20, 1993, the Assistant Manager Mr. Deshpande forced the petitioner to do heavy job in contravention of medical advice and due to constant pressurizing of the petitioner by Mr. Deshpande, he was required to be treated for high blood-pressure and has to be sent by the Companys Doctor to K. E. M. Hospital and the petitioner was sanctioned leave and resumed duty only on July 29, 1993, immediately before which the petitioner filed the complaint. It is therefore, contended on behalf of the petitioner that the petitioner made several requests and had several discussions with the Management of the Respondent-Company on his own and through the Trade Union and requested the company to grant him accident benefit and was assured in the matter and therefore, he did not rush to the Court. Further he made representation to the Factory Inspector and the Deputy Director of Industrial Safety and Health and requested for their assistance and. intervention in the matter and those efforts could not be successful and further the petitioner was not in a position to incur additional expenses to litigate the matter, he being not in good health and physically unfit to undertake running around in order to take the matter to Court and therefore, there was delay in filing the complaint According to the petitioner, in case the delay is not condoned, the petitioner would suffer grave injustice. The learned Counsel for the petitioner drew our, attention to the settlement between the Union and the employer, Clause 10 of which provides for medical benefits to a workman and under the said provision, the petitioner is entitled for accident benefit. It is further submitted that the learned Industrial Court ought to have considered the case of the petitioner sympathetically rather than taking a pedantic approach in the matter and rejecting the application of the Petitioner on technical ground. The petitioner has also relied on the case of Collector, Land Acquisition. Anantnag and Anr. v. Mst Katiji and Ors. reported in 1987 II CLR page 92 SC. ( 7 ) ON the other hand, learned Counsel appearing for Respondent No. 1 submitted that the order of the Industrial Court does not suffer from any illegality as the petitioner has failed to show sufficient cause in order to explain the delay of about 621 days. It is contended that the 1st Respondent-Company had denied him leave as early as on September 21, 1991 and thereafter, the petitioner had approached the Inspector of Factory and Director of Industrial Safety which was for mainly seeking light work, and the same was immaterial for showing good and sufficient reason for condoning delay. It is further denied that the petitioner was denied benefits because of union activities. It is therefore submitted that as the complaint filed by the petitioner was barred by limitation the Industrial Court rightly rejected the same. ( 8 ) WE have examined the case and find that the petitioner has a prima facie good case on merits and from the documents on record and relied upon by the petitioner, it may be seen that the petitioner repeatedly approached the Respondent Company to claim medical benefits and light work in view of the injury suffered by him. Letter dated October 10, 1991 addressed to the Registrar in Orthopaedic of BYL Nair Charitable Hospital on behalf of the Medical Officer of the Respondent-Company, clearly shows that the petitioner fell sick in the factory while on duty on August 14, 1991 at 9 a. m. and was referred to the Hospital for investigation and treatments. The Medical Certificate issued by the B. Y. L Nair Hospital also reveals that the petitioner was advised for light duty/suitable work The petitioner also approached the Deputy Director of Industrial Safety and Health and the Factory Inspector for seeking redress and by letter dated September 25, 1992 Dr (Ms.) A. J. Bhatkhende, Deputy Director, Industrial Safety and Health (Medical and Certifying Surgeon), Maharashtra State, Bombay did certify that the petitioner received back injury (prolapsed Intervertebral Disc) out of employment and directed the Personnel Manager of the Respondent Company to take the matter very seriously. The subsequent letters addressed by the petitioner and Union to the Management explains the conduct of the petitioner that he was diligent. Therefore, in the facts and circumstances of the case, learned Industrial Court ought to have considered the case of the petitioner sympathetically rather than rejecting the application of the petitioner for condonation of delay. The case of the petitioner deserves consideration on merit and hence in our view this is a fit case where the delay could have been condoned. | 0[ds]( 8 ) WE have examined the case and find that the petitioner has a prima facie good case on merits and from the documents on record and relied upon by the petitioner, it may be seen that the petitioner repeatedly approached the Respondent Company to claim medical benefits and light work in view of the injury suffered by him. Letter dated October 10, 1991 addressed to the Registrar in Orthopaedic of BYL Nair Charitable Hospital on behalf of the Medical Officer of the, clearly shows that the petitioner fell sick in the factory while on duty on August 14, 1991 at 9 a. m. and was referred to the Hospital for investigation and treatments. The Medical Certificate issued by the B. Y. L Nair Hospital also reveals that the petitioner was advised for light duty/suitable work The petitioner also approached the Deputy Director of Industrial Safety and Health and the Factory Inspector for seeking redress and by letter dated September 25, 1992 Dr (Ms.) A. J. Bhatkhende, Deputy Director, Industrial Safety and Health (Medical and Certifying Surgeon), Maharashtra State, Bombay did certify that the petitioner received back injury (prolapsed Intervertebral Disc) out of employment and directed the Personnel Manager of the Respondent Company to take the matter very seriously. The subsequent letters addressed by the petitioner and Union to the Management explains the conduct of the petitioner that he was diligent. Therefore, in the facts and circumstances of the case, learned Industrial Court ought to have considered the case of the petitioner sympathetically rather than rejecting the application of the petitioner for condonation of delay. The case of the petitioner deserves consideration on merit and hence in our view this is a fit case where the delay could have been condoned. | 0 | 1,608 | 319 | ### Instruction:
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labour practice under Items 4 (f) of Schedule II and Items 9 and 10 of Schedule IV of the Act. ( 6 ) IT is submitted on behalf of the Petitioner that the petitioner made representation through the Trade Union for payment of the accident benefit and resumption of duty in the Respondents company. However, the Respondent adopted delaying tactics and kept harassing the petitioner and complied with neither of the requests and so the petitioner approached the Director of Industrial Safety and Health and requested their assistance in arriving at a solution in the matter. It is the case of the petitioner that the Personnel Manager of the Company Shri Vijay Kumar on October 6, 1992 advised the petitioner to resume duty with an assurance that the question of payment of accident benefit would be settled later and so by relying on the assurance made by the Personnel Manager, the petitioner resumed duty and until February 1993, the petitioner was given light work in the lubrication department. However, thereafter the Maintenance Manager of the Respondents company Mr. Shamim Gandhi told the petitioner to forget about his demand for accident benefit and promised the petitioner to give light work which the petitioner refused and therefore, he was made to sit for 8 hours of the day in the Time Office without giving any Work, which continued till June 30, 1993. On July 20, 1993, the Assistant Manager Mr. Deshpande forced the petitioner to do heavy job in contravention of medical advice and due to constant pressurizing of the petitioner by Mr. Deshpande, he was required to be treated for high blood-pressure and has to be sent by the Companys Doctor to K. E. M. Hospital and the petitioner was sanctioned leave and resumed duty only on July 29, 1993, immediately before which the petitioner filed the complaint. It is therefore, contended on behalf of the petitioner that the petitioner made several requests and had several discussions with the Management of the Respondent-Company on his own and through the Trade Union and requested the company to grant him accident benefit and was assured in the matter and therefore, he did not rush to the Court. Further he made representation to the Factory Inspector and the Deputy Director of Industrial Safety and Health and requested for their assistance and. intervention in the matter and those efforts could not be successful and further the petitioner was not in a position to incur additional expenses to litigate the matter, he being not in good health and physically unfit to undertake running around in order to take the matter to Court and therefore, there was delay in filing the complaint According to the petitioner, in case the delay is not condoned, the petitioner would suffer grave injustice. The learned Counsel for the petitioner drew our, attention to the settlement between the Union and the employer, Clause 10 of which provides for medical benefits to a workman and under the said provision, the petitioner is entitled for accident benefit. It is further submitted that the learned Industrial Court ought to have considered the case of the petitioner sympathetically rather than taking a pedantic approach in the matter and rejecting the application of the Petitioner on technical ground. The petitioner has also relied on the case of Collector, Land Acquisition. Anantnag and Anr. v. Mst Katiji and Ors. reported in 1987 II CLR page 92 SC. ( 7 ) ON the other hand, learned Counsel appearing for Respondent No. 1 submitted that the order of the Industrial Court does not suffer from any illegality as the petitioner has failed to show sufficient cause in order to explain the delay of about 621 days. It is contended that the 1st Respondent-Company had denied him leave as early as on September 21, 1991 and thereafter, the petitioner had approached the Inspector of Factory and Director of Industrial Safety which was for mainly seeking light work, and the same was immaterial for showing good and sufficient reason for condoning delay. It is further denied that the petitioner was denied benefits because of union activities. It is therefore submitted that as the complaint filed by the petitioner was barred by limitation the Industrial Court rightly rejected the same. ( 8 ) WE have examined the case and find that the petitioner has a prima facie good case on merits and from the documents on record and relied upon by the petitioner, it may be seen that the petitioner repeatedly approached the Respondent Company to claim medical benefits and light work in view of the injury suffered by him. Letter dated October 10, 1991 addressed to the Registrar in Orthopaedic of BYL Nair Charitable Hospital on behalf of the Medical Officer of the Respondent-Company, clearly shows that the petitioner fell sick in the factory while on duty on August 14, 1991 at 9 a. m. and was referred to the Hospital for investigation and treatments. The Medical Certificate issued by the B. Y. L Nair Hospital also reveals that the petitioner was advised for light duty/suitable work The petitioner also approached the Deputy Director of Industrial Safety and Health and the Factory Inspector for seeking redress and by letter dated September 25, 1992 Dr (Ms.) A. J. Bhatkhende, Deputy Director, Industrial Safety and Health (Medical and Certifying Surgeon), Maharashtra State, Bombay did certify that the petitioner received back injury (prolapsed Intervertebral Disc) out of employment and directed the Personnel Manager of the Respondent Company to take the matter very seriously. The subsequent letters addressed by the petitioner and Union to the Management explains the conduct of the petitioner that he was diligent. Therefore, in the facts and circumstances of the case, learned Industrial Court ought to have considered the case of the petitioner sympathetically rather than rejecting the application of the petitioner for condonation of delay. The case of the petitioner deserves consideration on merit and hence in our view this is a fit case where the delay could have been condoned.
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0
### Explanation:
( 8 ) WE have examined the case and find that the petitioner has a prima facie good case on merits and from the documents on record and relied upon by the petitioner, it may be seen that the petitioner repeatedly approached the Respondent Company to claim medical benefits and light work in view of the injury suffered by him. Letter dated October 10, 1991 addressed to the Registrar in Orthopaedic of BYL Nair Charitable Hospital on behalf of the Medical Officer of the, clearly shows that the petitioner fell sick in the factory while on duty on August 14, 1991 at 9 a. m. and was referred to the Hospital for investigation and treatments. The Medical Certificate issued by the B. Y. L Nair Hospital also reveals that the petitioner was advised for light duty/suitable work The petitioner also approached the Deputy Director of Industrial Safety and Health and the Factory Inspector for seeking redress and by letter dated September 25, 1992 Dr (Ms.) A. J. Bhatkhende, Deputy Director, Industrial Safety and Health (Medical and Certifying Surgeon), Maharashtra State, Bombay did certify that the petitioner received back injury (prolapsed Intervertebral Disc) out of employment and directed the Personnel Manager of the Respondent Company to take the matter very seriously. The subsequent letters addressed by the petitioner and Union to the Management explains the conduct of the petitioner that he was diligent. Therefore, in the facts and circumstances of the case, learned Industrial Court ought to have considered the case of the petitioner sympathetically rather than rejecting the application of the petitioner for condonation of delay. The case of the petitioner deserves consideration on merit and hence in our view this is a fit case where the delay could have been condoned.
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Babubhai Muljibhai Patel Vs. Nandlal Khodidas Barot & Ors | matter and started an enquiry on their own."Some inscrutable purpose has animated the police officers to investigate into what was altogether beyond their pale. If such unwarranted police intrusions into municipal doings were left uncriticised, the peril to the citizen and to public institutions is obvious. It strikes me that the State Government will enquire into how such officious police interference occurred and whether there was any sinister savour about it.29. Our elected local bodies are expected to be self-governing units (Article 40 of the Constitution). If these grassroots institutions pervert themselves, small wonder that power at higher levels, betrays popular trust. In the present case, certain incontrovertible facts need mention to appreciate my apprehensions about this tiny municipal administration having become a plaything of factious politics with under-currents of personal conflicts and overtones of economic interests.30. The Kalol Municipality is a small town and the wheels of its politics are alleged to be linked with the economics of industrial unit the Navjivan Mills While rival versions are asserted before us (neither, if true, being complimentary), it is pertinent that, out of a strength of 25, one of the councillors is a peon of the Mill, three of them other employees and a fifth, connected with it. Both sides allege, although with conflicting projections, that between the presidential election in 1970 and the toppling tremors within two years, the estrangement between the Mill management and the appellant had developed. While the Mill group voted with the appellant to oust him President, they swung to elect him from office in May, 1972. Without examining the veracity of either Partys version one may express the hunch that the economic interests of that industry must have had some sort of influence over the working of the Kalol Council.31. From the inception, the appellant and the 1st respondent, have been fighting for power and, in the first round, the former won, on November 1, 1970. Nevertheless, some councillors appear to have concentrated on power-grab and, as part of this political circus, created confusion at municipal meetings. It is equally clear, from the judgment of the High Court"that in respect o by the petitioners group on the other hand"The Court has further stated that the appellant, apprehensive of his eroding majority had ruled out many motions.He has converted them (rule-outs) into an instrument to negative the will of the majority and to cajole them into submitting to him. We are constrained to say that there cannot be an uglier, more distasteful, more disagreeable and more distorted form of democracy than one we have seen on evidence in the civic affairs of Kalol....The town has been helplessly witnesseing unseemly duels amongst the city fathers which have brought all progress and normal administration to a standstill. It also appears from the record of the case that no meeting of the municipality could be held except under police protection."32. The fluctuation fortunes and the fluid loyalties emerging from the diary of events makes disturbing reading. The learned Judges of the High Court notice that while the petitioner-appellant defeated respondent No.1 on November 1,1970 that event sparked off not collective functioning for the common good, but combats for group cornering of positions. "On December 10, 1970 Kalol Municipality adopted a motion for disqualifying the petitioner (respondent No.1 here) form the councillorship and passed it". However, "on June 1972, a resolution was passed by 23 councillors of Kalol Municipality voting against the petitioner,(1st respondent herein) being disqualified by the State Government". We have it further from the judgment of the court below that"On October 12, 1972 respondent No. 1 (appellant before us) admitted lost his majority. On December 4, 1972 a resolution came up for consideration before the Municipality to reduce the term of respondent No.1 (appellant herein), as President of the Municipality, from 5 years to 2 years"The chaos in that tiny cosmos is self-evident Presumably some citizens were exasperated at these happening and "on February 18 a public meeting was held in the Kalol Town Hall". A leaflet issued in connection with that meeting mentions that"a tug-of-war has been going on in the Kalol Municipality between two groups and that the meeting of the citizens was called for the purpose of considering the situation arising out of it."From the materials on record, it is legitimate to draw the inference that the citizens meeting gave a mandate to some councillors to act with the majority in the interests of civic welfare. We have one more fact of grave import. An earlier no-confidence motion passed by 16 councillors was held by the High Court to be numerically deficient by one, to make up the 2/3rds majority. And at the second no-confidence motion, as we have already held, one who otherwise had supported the appellant, switched loyalties. These are distressing testimony to pollution in public life.33. Kalol is not alone nor is the politics of jockeying a local syndrome. If the municipal microcosm has put self above service, wearing the mask of public office, the national macrocosm will eventually magnify the vice, and once popular mistrust of democracy spreads voices in the whispering gallery will be heard: "Mischief, thou art afoot, take what course thou wilt." If this small municipality needs policemen to hold its meetings, periodically exercise itself in the fine art of defection and false minutes perhaps allows the interests of a Mill to sway its affairs and compels the holding of public meetings to command its elected representatives to behave, themselves political democracy is moving towards the evening of long shadows. Laws and Courts are not the remedy for this malady, but better man and basic morality when ballots are sought. "Remember." said John Adams," remember, democracy never lasts long. It soon wastes. exhausts and murders itself. There never was a democracy that did not commit suicide.*The appeal we are dismissing is socio-legally symptomatic.*Quoted by Hidayatullah, J. (as he then was) in Democracy in India and the Judicial Process-Lajpatrai Memorial Lecture Series- 1965 - Asia publishing House P.16.34. | 0[ds]8. On behalf of the appellant his learned counsel, Mr. Amin, has at the outset contended that as the dispute between the parties in this case involved questions of fact, the High Court should not have entertained the writ petition filed by the respondent No.1 but should have referred the parties to a separate suit.This contention, in our opinion, is not well founded. No plea was admittedly taken in the return filed on behalf of the appellant in reply to the writ petition that respondent No.1 should be directed to seek his remedy by means of a suit because of disputed questions of fact. In the absence of such a plea, the appellant, in our opinion, cannot be heard to say that the High Court should have relegated respondent No.1 to the remedy of a suit. Apart from that we find that the term of the appellant as the President of the municipality would have expired in 1975. The trial of a suit, in the very nature of things, would have taken considerable time. Appeal and second appeal would have also been filed by the unsuccessful party in the case. Had respondent No.1 been directed to seek his remedy by way of a suit, the relief secured by respondent No.1 even if he had succeeded in the suit would have been wholly illusory because by the time respondent No.1 would succeed in the litigation, the term of the office of the President would have either already expired or be about to expire. The appellant in that event would have continued as the President of the municipality even though he had ceased to enjoy the confidence of the requisite number of councillors and they had passed a motion of no confidence against him. The entire concept of a democratic institution would thus have been set at naught. We agree with the observations of the High Court that the purpose underlying the petition would have been completely defeated in case respondent No.1 had been relegated to the ordinary remedy of a suit and that such remedy was neither adequate nora case like the present where as many as 40 persons filed affidavits in support of one party and 27 persons filed affidavits in support of the opposite party, the High Court, in our opinion, was well justified in the exercise of its discretion in selecting such persons whom it considered to be really important and crucial for the purpose of cross-examination. The effect of permitting cross-examination was not that the High Court was divested of all discretion and control in the matter and was bound to call for cross-examination each and every deponent who was named by either party. We have reproduced above the material part of order dated September 19, 1973 and it would appear therefrom that the High Court selected for cross-examination five of those councillors who, according to respondent No.1, were present in the meeting wherein the motion of no confidence was alleged to have been passed but who, according to the appellant, were not present in that meeting. These five councillors had filed affidavits in support of the case of respondent No.1. In addition to these five councillors, the High Court selected Babubhai Dahyabhai Khamar, local correspondent of Gujarat Samachar, wo claimed to have been present in the Council Hall at the time of the above meeting and who sent a report about the proceedings of that meeting to the Gujarat Samachar. From amongst the deponents who had filed affidavits in support of the case of the appellant, the High Court selected for cross-examinations Chandulal Chhotalal Barot, Vice President of the municipality who, according to the appellant, presided over that meeting as well as Councillor V. S. Patel, who claimed that he was not present in the above meeting but who, according to respondent No.1, was present in that meeting and had supported the motion of no confidence. Looking to all the facts of the case, we are of the opinion that the discretion exercised by the High Court in selecting for cross-examination those deponents whom it considered to be crucial was proper and judicious. No prejudice, in our opinion, was caused to any of the parties by the procedure adopted by the High Court. We would, therefore, hold that order dated September 19, 1973 made by the High Court does not suffer from any infirmity.11. Mr. Amin then submits that the deponents called for cross-examination should have been examined-in-chief and thereafter cross-examined. The production of those witnesses simply for cross-examination was not warranted bywould appear from the above that all that the appellant himself prayed in his application was that the deponents mentioned by him should be offered for cross-examination and not that those witnesses should be examined-in-chief and thereafter cross-examined. No grievance could, therefore, have been made by the appellant if the deponents had not been examined-in-chief but had been simply cross-examined. As things however are, we find that when the deponents concerned were produced in court, they were examined-in-chief and thereafter there was cross-examination. In the course of their examination-in-chief the deponents stated about their having sworn their affidavits and about the correctness of the contents of those affidavits. It might in the circumstances have appeared to the unnecessary duplication to ask those deponents to repeat what had been stated by them in their affidavits.12. We are also not impressed by the argument of Mr. Amin that as cross-examination of only 8 deponents had been permitted, the affidavits of others who were not cross-examined could not be taken into consideration. The High Court permitted cross-examination of such of the deponents in respect of whom it came to the conclusion that their cross-examination was essential for arriving at the truth of the matter. It did not, however, follow from that the High Court was precluded from taking into consideration the affidavits of other deponents. Order permitting cross-examination of some of the deponents did not have the effect of obliterating from record the affidavits of other deponents and we find nothing wrong in the approach of the High Court in relying upon the affidavits of deponents who were not cross-examined if on conspectus of the entire circumstances of the case it found the averments in those affidavits to be true.13. Mr. Amin has next challenged the correctness of the finding of the High Court that 17 councillors had supported the motion of no confidence. It is submitted that the version of the appellant regarding what transpired in the meeting of May 6, 1973 is correct. The High Court, according to the learned counsel, was in error in relying upon the version of respondent No.1. In particular, Mr. Amin submits that V. S. Patel councillor was not present in that meeting. The presence of Councillor Kantilal Chhganlal Shah in the meeting has also been questioned. In this respect we find that the High Court has relied upon the affidavits of 16 councillors who in the course of their affidavits stated that 17 councillors including those councillors themselves had voted in the meeting held on May 6, 1973 in support of the motion of no confidence. Out of those 16 councillors, 15 were admittedly in Kalol on that day. They having sined the motion of no confidence, there was in the opinion of the High Court, no reason why they should not be present in that meeting. As regards the presence of Councillor Kantilal Chhaganlal Shah the High Court relied upon his affidavit wherein he stated that he was present in the meeting and had voted in support of the motion of no confidence and found that his deposition had not been shaken in cross-examination. Regarding Councillor V. S. Patel about whom the case of respondent No.1 was that he had supported the motion of no confidence while that of the appellant was that he was not present in the meeting, the High Court observed that the material on record pointed to the conclusion that he had supported the motion of no confidence. The High Court in this context relied upon the version given by Chief Officer R. D. Barot, who was admittedly present in that meeting, as well as the statement of Babulal Dahyabhai Khamar, press correspondent. After having heard Mr. Amin at considerable length, we find no sufficient ground to interfere with the appraisement of the depositions and other materials on record by the Highis no doubt true that according to the form prescribed the ground for the motion of no confidence has to be mentioned in the notice of intention to move a motion of no confidence. It does not, however, follows therefrom that the ground must also be specified when a motion of no confidence is actually passed against a President. It is pertinent in this context to observe that there is a difference between a motion of no confidence and a censure motion. While it is necessary in the case of a censure motion to set out the ground or charge on which it is based, a motion of no confidence need not set out a ground or charge. A vote of censure presupposes that the persons censured have been quietly of some impropriety or lapse by act or omission and it is because of that lapse or impropriety that they are being censured. It may, therefore, become necessary to specify the impropriety or lapse while moving a vote of censure. No such consideration arises when a motion of no confidence is moved. Although a ground may be mentioned when passing a motion of no confidence, the existence of a ground is not a prerequisite of a motion of no confidence. There is no legal bar to the passing of a motion of no confidence against an authority in the absence of any charge of impropriety or lapse on the part of that authority. The essential connotation of a no confidence motion is that the party against whom such motion is passed has ceased to enjoy the confidence of the requisite majority of members.Mr. Amin has next assailed the finding of the High Court that the Collector had no jurisdiction to make an inquiry and pass order dated June 9, 1973. It is, in our view, not necessary to express an opinion on this aspect of the matter as Mr. Amin has not during the course of arguments assailed the other finding of the High Court that the procedure adopted by the Collector was violative of the principle of natural justice. In view of this latter finding, the order of the Collector dated June 9, 1973 was in any event liable to be quashed.20. Mr. Dhebar, who has appeared on behalf of the Collector, has submitted that the Collector was not actuated by any oblique motive in passing order dated June 9, 1979. We agree with Mr. Dhebar that there in no cogent material on record to show that the Collector was actuated by any oblique motive when he passed that order. The fact that the procedure adopted by him was violative of the principles of natural justice might show an error of judgment, but from that it cannot be inferred that the Collector was motivated by ulterior consideration.21. There is, in our opinion, no force in the appeal which fails and is dismissed with costs. | 0 | 9,742 | 2,018 | ### Instruction:
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matter and started an enquiry on their own."Some inscrutable purpose has animated the police officers to investigate into what was altogether beyond their pale. If such unwarranted police intrusions into municipal doings were left uncriticised, the peril to the citizen and to public institutions is obvious. It strikes me that the State Government will enquire into how such officious police interference occurred and whether there was any sinister savour about it.29. Our elected local bodies are expected to be self-governing units (Article 40 of the Constitution). If these grassroots institutions pervert themselves, small wonder that power at higher levels, betrays popular trust. In the present case, certain incontrovertible facts need mention to appreciate my apprehensions about this tiny municipal administration having become a plaything of factious politics with under-currents of personal conflicts and overtones of economic interests.30. The Kalol Municipality is a small town and the wheels of its politics are alleged to be linked with the economics of industrial unit the Navjivan Mills While rival versions are asserted before us (neither, if true, being complimentary), it is pertinent that, out of a strength of 25, one of the councillors is a peon of the Mill, three of them other employees and a fifth, connected with it. Both sides allege, although with conflicting projections, that between the presidential election in 1970 and the toppling tremors within two years, the estrangement between the Mill management and the appellant had developed. While the Mill group voted with the appellant to oust him President, they swung to elect him from office in May, 1972. Without examining the veracity of either Partys version one may express the hunch that the economic interests of that industry must have had some sort of influence over the working of the Kalol Council.31. From the inception, the appellant and the 1st respondent, have been fighting for power and, in the first round, the former won, on November 1, 1970. Nevertheless, some councillors appear to have concentrated on power-grab and, as part of this political circus, created confusion at municipal meetings. It is equally clear, from the judgment of the High Court"that in respect o by the petitioners group on the other hand"The Court has further stated that the appellant, apprehensive of his eroding majority had ruled out many motions.He has converted them (rule-outs) into an instrument to negative the will of the majority and to cajole them into submitting to him. We are constrained to say that there cannot be an uglier, more distasteful, more disagreeable and more distorted form of democracy than one we have seen on evidence in the civic affairs of Kalol....The town has been helplessly witnesseing unseemly duels amongst the city fathers which have brought all progress and normal administration to a standstill. It also appears from the record of the case that no meeting of the municipality could be held except under police protection."32. The fluctuation fortunes and the fluid loyalties emerging from the diary of events makes disturbing reading. The learned Judges of the High Court notice that while the petitioner-appellant defeated respondent No.1 on November 1,1970 that event sparked off not collective functioning for the common good, but combats for group cornering of positions. "On December 10, 1970 Kalol Municipality adopted a motion for disqualifying the petitioner (respondent No.1 here) form the councillorship and passed it". However, "on June 1972, a resolution was passed by 23 councillors of Kalol Municipality voting against the petitioner,(1st respondent herein) being disqualified by the State Government". We have it further from the judgment of the court below that"On October 12, 1972 respondent No. 1 (appellant before us) admitted lost his majority. On December 4, 1972 a resolution came up for consideration before the Municipality to reduce the term of respondent No.1 (appellant herein), as President of the Municipality, from 5 years to 2 years"The chaos in that tiny cosmos is self-evident Presumably some citizens were exasperated at these happening and "on February 18 a public meeting was held in the Kalol Town Hall". A leaflet issued in connection with that meeting mentions that"a tug-of-war has been going on in the Kalol Municipality between two groups and that the meeting of the citizens was called for the purpose of considering the situation arising out of it."From the materials on record, it is legitimate to draw the inference that the citizens meeting gave a mandate to some councillors to act with the majority in the interests of civic welfare. We have one more fact of grave import. An earlier no-confidence motion passed by 16 councillors was held by the High Court to be numerically deficient by one, to make up the 2/3rds majority. And at the second no-confidence motion, as we have already held, one who otherwise had supported the appellant, switched loyalties. These are distressing testimony to pollution in public life.33. Kalol is not alone nor is the politics of jockeying a local syndrome. If the municipal microcosm has put self above service, wearing the mask of public office, the national macrocosm will eventually magnify the vice, and once popular mistrust of democracy spreads voices in the whispering gallery will be heard: "Mischief, thou art afoot, take what course thou wilt." If this small municipality needs policemen to hold its meetings, periodically exercise itself in the fine art of defection and false minutes perhaps allows the interests of a Mill to sway its affairs and compels the holding of public meetings to command its elected representatives to behave, themselves political democracy is moving towards the evening of long shadows. Laws and Courts are not the remedy for this malady, but better man and basic morality when ballots are sought. "Remember." said John Adams," remember, democracy never lasts long. It soon wastes. exhausts and murders itself. There never was a democracy that did not commit suicide.*The appeal we are dismissing is socio-legally symptomatic.*Quoted by Hidayatullah, J. (as he then was) in Democracy in India and the Judicial Process-Lajpatrai Memorial Lecture Series- 1965 - Asia publishing House P.16.34.
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had been stated by them in their affidavits.12. We are also not impressed by the argument of Mr. Amin that as cross-examination of only 8 deponents had been permitted, the affidavits of others who were not cross-examined could not be taken into consideration. The High Court permitted cross-examination of such of the deponents in respect of whom it came to the conclusion that their cross-examination was essential for arriving at the truth of the matter. It did not, however, follow from that the High Court was precluded from taking into consideration the affidavits of other deponents. Order permitting cross-examination of some of the deponents did not have the effect of obliterating from record the affidavits of other deponents and we find nothing wrong in the approach of the High Court in relying upon the affidavits of deponents who were not cross-examined if on conspectus of the entire circumstances of the case it found the averments in those affidavits to be true.13. Mr. Amin has next challenged the correctness of the finding of the High Court that 17 councillors had supported the motion of no confidence. It is submitted that the version of the appellant regarding what transpired in the meeting of May 6, 1973 is correct. The High Court, according to the learned counsel, was in error in relying upon the version of respondent No.1. In particular, Mr. Amin submits that V. S. Patel councillor was not present in that meeting. The presence of Councillor Kantilal Chhganlal Shah in the meeting has also been questioned. In this respect we find that the High Court has relied upon the affidavits of 16 councillors who in the course of their affidavits stated that 17 councillors including those councillors themselves had voted in the meeting held on May 6, 1973 in support of the motion of no confidence. Out of those 16 councillors, 15 were admittedly in Kalol on that day. They having sined the motion of no confidence, there was in the opinion of the High Court, no reason why they should not be present in that meeting. As regards the presence of Councillor Kantilal Chhaganlal Shah the High Court relied upon his affidavit wherein he stated that he was present in the meeting and had voted in support of the motion of no confidence and found that his deposition had not been shaken in cross-examination. Regarding Councillor V. S. Patel about whom the case of respondent No.1 was that he had supported the motion of no confidence while that of the appellant was that he was not present in the meeting, the High Court observed that the material on record pointed to the conclusion that he had supported the motion of no confidence. The High Court in this context relied upon the version given by Chief Officer R. D. Barot, who was admittedly present in that meeting, as well as the statement of Babulal Dahyabhai Khamar, press correspondent. After having heard Mr. Amin at considerable length, we find no sufficient ground to interfere with the appraisement of the depositions and other materials on record by the Highis no doubt true that according to the form prescribed the ground for the motion of no confidence has to be mentioned in the notice of intention to move a motion of no confidence. It does not, however, follows therefrom that the ground must also be specified when a motion of no confidence is actually passed against a President. It is pertinent in this context to observe that there is a difference between a motion of no confidence and a censure motion. While it is necessary in the case of a censure motion to set out the ground or charge on which it is based, a motion of no confidence need not set out a ground or charge. A vote of censure presupposes that the persons censured have been quietly of some impropriety or lapse by act or omission and it is because of that lapse or impropriety that they are being censured. It may, therefore, become necessary to specify the impropriety or lapse while moving a vote of censure. No such consideration arises when a motion of no confidence is moved. Although a ground may be mentioned when passing a motion of no confidence, the existence of a ground is not a prerequisite of a motion of no confidence. There is no legal bar to the passing of a motion of no confidence against an authority in the absence of any charge of impropriety or lapse on the part of that authority. The essential connotation of a no confidence motion is that the party against whom such motion is passed has ceased to enjoy the confidence of the requisite majority of members.Mr. Amin has next assailed the finding of the High Court that the Collector had no jurisdiction to make an inquiry and pass order dated June 9, 1973. It is, in our view, not necessary to express an opinion on this aspect of the matter as Mr. Amin has not during the course of arguments assailed the other finding of the High Court that the procedure adopted by the Collector was violative of the principle of natural justice. In view of this latter finding, the order of the Collector dated June 9, 1973 was in any event liable to be quashed.20. Mr. Dhebar, who has appeared on behalf of the Collector, has submitted that the Collector was not actuated by any oblique motive in passing order dated June 9, 1979. We agree with Mr. Dhebar that there in no cogent material on record to show that the Collector was actuated by any oblique motive when he passed that order. The fact that the procedure adopted by him was violative of the principles of natural justice might show an error of judgment, but from that it cannot be inferred that the Collector was motivated by ulterior consideration.21. There is, in our opinion, no force in the appeal which fails and is dismissed with costs.
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Ajmer Singh Etc. Etc Vs. Union Of India & Ors | prescribed by any other law. Whatever doubt might otherwise have existed on this point is totally set at rest by section 475 of the Code of Criminal Procedure which furnishes a conclusive indication that the provisions of the Code are not intended to apply in respect of proceeding before the Court-martial. That section is in the following terms: "475. Delivery to commanding officers of persons liable to be tried by Court-martial. - (1) The Central Government may make rules consistent with this Code and the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950) and any other law, relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to military, naval or air force law, or such other law, shall be tried by a court to which this code applies or by a Court-martial; and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a court to which this Code applies or by a Court-martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the unit to which he belongs, or to the commanding officer of the nearest military, naval or air force station, as the case may be, for the purpose of being tried by Court-martial.Explanation - In this section -(a) "unit" includes a regiment, corps, ship, detachment, group, battalion or company.(b) "Court-martial" includes any tribunal with the powers similar to those of a Court-martial constituted under the relevant law applicable to the Armed Forces of the Union.(2) Every Magistrate shall, on receiving a written application for that purpose by the commanding officer of any unit or body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavors to apprehend and secure any person accused of such offence.(3) A High Court may, if it thinks fit, direct that a prisoner detained in any jail situated within the State be brought before a Court-martial for trial or to be examined touching any matter pending before the Court-martial.The distinction made in the section between "trial by a court to which this code applies" and by a Court-martial conclusively indicates that Parliament intended to treat the Court-martial as a forum to the proceedings before (sic which) the provisions of the Code will have no application." 11. Further there is also intrinsic indication contained in the very wording of Section 428 of the Code of Criminal Procedure that the section cannot have any application in respect of persons tried and sentenced by Court-martial. Section 428 of the Code reads: "428. Period of detention undergone by the accused to be set off against the sentence of imprisonment. - Where as accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him." 12. The section provides for set off of the period of detention undergone by an accused person during "the investigation, inquiry of trial" of the same case before the date of conviction. The expression "investigation" has been defined in the Section 2(h) of the Code as follows: "2(h) "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a magistrate in this behalf." In the case of persons tried by Court-martial there is no investigation conducted by any police officer under the Code or by any person authorised by Magistrate in that behalf. 13. Similarly, the expression : inquiry" has been defined in Section 2(g) of the Code as meaning "every inquiry, other than a trial, conducted under this Code by a Magistrate or Court". No inquiry is conducted under the Code by any Magistrate or court in respect of the offences committed by persons which are tried by the Court-martial. The trial is also not conducted by the Court-martial under the Code but only in accordance with the special procedure prescribed by the Act. Such being the position, the provision for set off contained in Section 428 of the Code of Criminal Procedure can never be attracted in the case of persons convicted and sentenced by Court-martial to undergo imprisonment. 14. In the light of the foregoing discussion we uphold as correct the view taken by the High Court of Punjab and Haryana in the Judgment under appeal. We also approve of the decisions of the High Courts of Madras and Delhi cited above wherein the view has been taken that the benefit of Section 428 of the Code of Criminal Procedure cannot be claimed by persons tried and sentenced by the Court-martial. 15. The decision in Subramanian v. Officer Commanding, Armoured Static Workshop (1979 Cri LJ 617 (Ker)) rendered by a learned Single Judge of the High Court of Kerala does not contain any discussion of the relevant provisions of the two concerned statutes and what little reasoning is found in the judgment does not appeal to us as correct or sound. The Division Bench of the Calcutta High Court in its decision in Anand Singh Bishit v. Union of India (1986 Cri LJ 563 (Cal)) has merely followed the aforesaid ruling of the Single Judge of the High Court of Kerala. We hold that these two decisions do not lay down the correct law. | 0[ds]10. As we have already indicated, we are unable to accept as correct the narrow and restricted interpretation sought to be placed on Section 5 of the Code by the counsel appearing on behalf of the appellants. In our opinion the effect of Section 5 of the Code is clearly to exclude the applicability of the Code in respect of proceedings under any special or local law or any special jurisdiction or form of procedure prescribed by any other law. Whatever doubt might otherwise have existed on this point is totally set at rest by section 475 of theCode of Criminal Procedure which furnishes a conclusive indication that the provisions of the Code are not intended to apply in respect of proceeding before the Court-martial.In the light of the foregoing discussion we uphold as correct the view taken by the High Court of Punjab and Haryana in the Judgment under appeal. We also approve of the decisions of the High Courts of Madras and Delhi cited above wherein the view has been taken that the benefit of Section 428 of theCode of Criminal Procedure cannot be claimed by persons tried and sentenced by theThe decision in Subramanian v. Officer Commanding, Armoured Static Workshop (1979 Cri LJ 617 (Ker)) rendered by a learned Single Judge of the High Court of Kerala does not contain any discussion of the relevant provisions of the two concerned statutes and what little reasoning is found in the judgment does not appeal to us as correct or sound. The Division Bench of the Calcutta High Court in its decision in Anand Singh Bishit v. Union of India (1986 Cri LJ 563 (Cal)) has merely followed the aforesaid ruling of the Single Judge of the High Court of Kerala. We hold that these two decisions do not lay down the correct law | 0 | 2,599 | 326 | ### Instruction:
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prescribed by any other law. Whatever doubt might otherwise have existed on this point is totally set at rest by section 475 of the Code of Criminal Procedure which furnishes a conclusive indication that the provisions of the Code are not intended to apply in respect of proceeding before the Court-martial. That section is in the following terms: "475. Delivery to commanding officers of persons liable to be tried by Court-martial. - (1) The Central Government may make rules consistent with this Code and the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950) and any other law, relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to military, naval or air force law, or such other law, shall be tried by a court to which this code applies or by a Court-martial; and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a court to which this Code applies or by a Court-martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the unit to which he belongs, or to the commanding officer of the nearest military, naval or air force station, as the case may be, for the purpose of being tried by Court-martial.Explanation - In this section -(a) "unit" includes a regiment, corps, ship, detachment, group, battalion or company.(b) "Court-martial" includes any tribunal with the powers similar to those of a Court-martial constituted under the relevant law applicable to the Armed Forces of the Union.(2) Every Magistrate shall, on receiving a written application for that purpose by the commanding officer of any unit or body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavors to apprehend and secure any person accused of such offence.(3) A High Court may, if it thinks fit, direct that a prisoner detained in any jail situated within the State be brought before a Court-martial for trial or to be examined touching any matter pending before the Court-martial.The distinction made in the section between "trial by a court to which this code applies" and by a Court-martial conclusively indicates that Parliament intended to treat the Court-martial as a forum to the proceedings before (sic which) the provisions of the Code will have no application." 11. Further there is also intrinsic indication contained in the very wording of Section 428 of the Code of Criminal Procedure that the section cannot have any application in respect of persons tried and sentenced by Court-martial. Section 428 of the Code reads: "428. Period of detention undergone by the accused to be set off against the sentence of imprisonment. - Where as accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him." 12. The section provides for set off of the period of detention undergone by an accused person during "the investigation, inquiry of trial" of the same case before the date of conviction. The expression "investigation" has been defined in the Section 2(h) of the Code as follows: "2(h) "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a magistrate in this behalf." In the case of persons tried by Court-martial there is no investigation conducted by any police officer under the Code or by any person authorised by Magistrate in that behalf. 13. Similarly, the expression : inquiry" has been defined in Section 2(g) of the Code as meaning "every inquiry, other than a trial, conducted under this Code by a Magistrate or Court". No inquiry is conducted under the Code by any Magistrate or court in respect of the offences committed by persons which are tried by the Court-martial. The trial is also not conducted by the Court-martial under the Code but only in accordance with the special procedure prescribed by the Act. Such being the position, the provision for set off contained in Section 428 of the Code of Criminal Procedure can never be attracted in the case of persons convicted and sentenced by Court-martial to undergo imprisonment. 14. In the light of the foregoing discussion we uphold as correct the view taken by the High Court of Punjab and Haryana in the Judgment under appeal. We also approve of the decisions of the High Courts of Madras and Delhi cited above wherein the view has been taken that the benefit of Section 428 of the Code of Criminal Procedure cannot be claimed by persons tried and sentenced by the Court-martial. 15. The decision in Subramanian v. Officer Commanding, Armoured Static Workshop (1979 Cri LJ 617 (Ker)) rendered by a learned Single Judge of the High Court of Kerala does not contain any discussion of the relevant provisions of the two concerned statutes and what little reasoning is found in the judgment does not appeal to us as correct or sound. The Division Bench of the Calcutta High Court in its decision in Anand Singh Bishit v. Union of India (1986 Cri LJ 563 (Cal)) has merely followed the aforesaid ruling of the Single Judge of the High Court of Kerala. We hold that these two decisions do not lay down the correct law.
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10. As we have already indicated, we are unable to accept as correct the narrow and restricted interpretation sought to be placed on Section 5 of the Code by the counsel appearing on behalf of the appellants. In our opinion the effect of Section 5 of the Code is clearly to exclude the applicability of the Code in respect of proceedings under any special or local law or any special jurisdiction or form of procedure prescribed by any other law. Whatever doubt might otherwise have existed on this point is totally set at rest by section 475 of theCode of Criminal Procedure which furnishes a conclusive indication that the provisions of the Code are not intended to apply in respect of proceeding before the Court-martial.In the light of the foregoing discussion we uphold as correct the view taken by the High Court of Punjab and Haryana in the Judgment under appeal. We also approve of the decisions of the High Courts of Madras and Delhi cited above wherein the view has been taken that the benefit of Section 428 of theCode of Criminal Procedure cannot be claimed by persons tried and sentenced by theThe decision in Subramanian v. Officer Commanding, Armoured Static Workshop (1979 Cri LJ 617 (Ker)) rendered by a learned Single Judge of the High Court of Kerala does not contain any discussion of the relevant provisions of the two concerned statutes and what little reasoning is found in the judgment does not appeal to us as correct or sound. The Division Bench of the Calcutta High Court in its decision in Anand Singh Bishit v. Union of India (1986 Cri LJ 563 (Cal)) has merely followed the aforesaid ruling of the Single Judge of the High Court of Kerala. We hold that these two decisions do not lay down the correct law
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M/s. Hansraj Gupta & Company Vs. Union of India | Mahesh Chandra was deemed to be terminated with effect from 30-9-1944 and that the subsequent supplies were by the clients of Shri Khurshed Lal (that is to say the plaintiff) was useless. It contradicts the assertion made in the paragraph 6 of the plaint that the wood was actually supplied by the contractor Mahesh Chandra (defendant No. 2) upto 31-3-1945. These bare assertions of some Military Officers could not alter facts, or the law or result in a fresh contract with the plaintiff. The difficulty which confronted this new case, sought to be set up by the plaintiff, is even more formidable than mere want of signature of a duly authorised sanctioning authority on the letter. The constitutional provisions of Section 175 (3) of the Government of India Act would bar mere assertions of this kind from operating as evidence of a contract. Again as held by the High Court, the claim for the price of goods supplied on a fresh contract, even if assumed to have come into existence in 1946, would be beyond three years in 1950 so that it would be barred by three years rule of limitation prescribed by Article 52.Moreover, a fresh agreement in 1946 to pay for a past supply of goods from 1944 to 1945, if already covered by the contract of 1944 and fully paid for under it as held by the trial Court and the High Court, would fail for want of consideration. So, the whole case of a fresh contract of l946 is also quite untenable.12. We may now turn to the plaintiffs claim to the benefit of Section 70 of the Contract Act put forward in this Court for the first time. It was urged, on the strength of Piloo Dhunjishaw Sidhwa v. Municipal Corpn. of the City of Poona, (1970) 3 SCR 415 = (AIR 1970 SC 1201 ) that, so long as the claim is there, this Court is not precluded from applying Section 70 of the Contract Act for the first time even on appeal by special leave. We, however, think that the conditions for the applicability of this Section must at least be set out in the pleadings and proved. As already noticed above, the plaintiff has not said anywhere in the plaint that any supplies were made by the plaintiff to the Army authorities. On the other hand, the assertion is that the supplies were made by the contractor (defendant No. 2).Section 70 of the Contract Act enables the person who actually supplies goods or renders some services, not intending to do so gratuitously, to claim compensation from the Person who enjoys the benefit of the supply made or services rendered. It is a liability which arises on equitable grounds even though express agreement or a contract may not be proved.13. The plaintiffs authority to realise monies was confined to recoveries of price for supplies made by defendant No. 2 under an express agreement between the defendants. And, the plaintiffs suit too is confined to claims on behalf of defendant No. 2, the actual supplier, for supplies under the contract and not outside it. It is urged not without force, on behalf of the Union of India, that evidence could have been led to show that the plaintiff made no supplies whatsoever, if the plaintiff had set up even an alternative case to that effect in conflict with the case actually set up of supplies made by the pro forma defendant No. 2 (i e the supplying contractor)14. Another contention on behalf of the Union of India was that S. 70 of the Contract Act only applies to cases where goods are supplied or services rendered without any payment whatsoever having been made for them. It is submitted that the supplying contractor having been fully paid at the contracted rates as found by the High Court and the Trial Court, no claim under Section 70 of the Contract Act was maintainable at all. Application of that Section, it is contended, would be excluded where the contract made is shown to have operated and to have been discharged as held by the High Court and the Trial Court. The learned Counsel for the Union of India was however not certain whether the finding was correct that the defendant contractor was actually fully paid, in accordance with the teens of the original contract, at unenhanced stipulated rates. We have not been taken through the whole evidence so as to be able to re-assess it on that question. We are not ordinarily called upon to do so on an appeal by special leave. We, therefore, prefer to rest our decision on the claim under Section 70 of the Contract Act on the ground that, on the case set up in the plaint, the plaintiff cannot fall back on any liability under Section 70 of the Contract Act when the supplies were obviously not actually made by the plaintiff.15. If, however, it is true that the plaintiff company, which claimed payment of Rs. 1,90,042/0/5 on bilk submitted, from 22-l-l 947 to 30-3-l948 for unpaid for supplies at enhanced rates, with interest at 7 l/2% per annum upto l-l-1950, so as to bring the total claim to Rs. 2,28,397/14/5, has not received payment at all for supplies of wood at rates stipulated for in the written contract for any period covering the contract for supplies made from 1-4-1944 to 31-3-1945, because the actual rates at which the payments were to be made were disputed and remained undecided due to no fault of the supplying contractor or the plaintiff, we hope that, as suggested by the learned Counsel for the Union of India, the plaintiff will be able to obtain payment for the unpaid for supplies actually made at rates specified in the original contract although the suit for it is barred by time. Even though the plaintiff may be morally entitled to that much payment at least we are unable to decree the suit for a time barred claim. | 0[ds]11. We think that insurmountable difficulties also lie in the path of acceptance of each of the last mentioned submissions of the plaintiff appellant. We will take up the first submission first. We find that there was no case set up by the plaintiff that there was any privity of contract between the plaintiff and the Union of India. The mere statement in the letter ofthat the contract with the supplier Mahesh Chandra was deemed to be terminated with effect fromand that the subsequent supplies were by the clients of Shri Khurshed Lal (that is to say the plaintiff) was useless. It contradicts the assertion made in the paragraph 6 of the plaint that the wood was actually supplied by the contractor Mahesh Chandra (defendant No. 2) uptoThese bare assertions of some Military Officers could not alter facts, or the law or result in a fresh contract with the plaintiff. The difficulty which confronted this new case, sought to be set up by the plaintiff, is even more formidable than mere want of signature of a duly authorised sanctioning authority on the letter. The constitutional provisions of Section 175 (3) of the Government of India Act would bar mere assertions of this kind from operating as evidence of a contract. Again as held by the High Court, the claim for the price of goods supplied on a fresh contract, even if assumed to have come into existence in 1946, would be beyond three years in 1950 so that it would be barred by three years rule of limitation prescribed by Article 52.Moreover, a fresh agreement in 1946 to pay for a past supply of goods from 1944 to 1945, if already covered by the contract of 1944 and fully paid for under it as held by the trial Court and the High Court, would fail for want of consideration. So, the whole case of a fresh contract of l946 is also quitehowever, think that the conditions for the applicability of this Section must at least be set out in the pleadings and proved. As already noticed above, the plaintiff has not said anywhere in the plaint that any supplies were made by the plaintiff to the Army authorities. On the other hand, the assertion is that the supplies were made by the contractor (defendant No. 2).Section 70 of the Contract Act enables the person who actually supplies goods or renders some services, not intending to do so gratuitously, to claim compensation from the Person who enjoys the benefit of the supply made or services rendered. It is a liability which arises on equitable grounds even though express agreement or a contract may not behave not been taken through the whole evidence so as to be able toit on that question. We are not ordinarily called upon to do so on an appeal by special leave. We, therefore, prefer to rest our decision on the claim under Section 70 of the Contract Act on the ground that, on the case set up in the plaint, the plaintiff cannot fall back on any liability under Section 70 of the Contract Act when the supplies were obviously not actually made by the plaintiff.15. If, however, it is true that the plaintiff company, which claimed payment of Rs. 1,90,042/0/5 on bilk submitted, from948 for unpaid for supplies at enhanced rates, with interest at 7 l/2% per annum uptoso as to bring the total claim to Rs. 2,28,397/14/5, has not received payment at all for supplies of wood at rates stipulated for in the written contract for any period covering the contract for supplies made from5, because the actual rates at which the payments were to be made were disputed and remained undecided due to no fault of the supplying contractor or the plaintiff, we hope that, as suggested by the learned Counsel for the Union of India, the plaintiff will be able to obtain payment for the unpaid for supplies actually made at rates specified in the original contract although the suit for it is barred by time. Even though the plaintiff may be morally entitled to that much payment at least we are unable to decree the suit for a time barred claim. | 0 | 3,229 | 765 | ### Instruction:
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Mahesh Chandra was deemed to be terminated with effect from 30-9-1944 and that the subsequent supplies were by the clients of Shri Khurshed Lal (that is to say the plaintiff) was useless. It contradicts the assertion made in the paragraph 6 of the plaint that the wood was actually supplied by the contractor Mahesh Chandra (defendant No. 2) upto 31-3-1945. These bare assertions of some Military Officers could not alter facts, or the law or result in a fresh contract with the plaintiff. The difficulty which confronted this new case, sought to be set up by the plaintiff, is even more formidable than mere want of signature of a duly authorised sanctioning authority on the letter. The constitutional provisions of Section 175 (3) of the Government of India Act would bar mere assertions of this kind from operating as evidence of a contract. Again as held by the High Court, the claim for the price of goods supplied on a fresh contract, even if assumed to have come into existence in 1946, would be beyond three years in 1950 so that it would be barred by three years rule of limitation prescribed by Article 52.Moreover, a fresh agreement in 1946 to pay for a past supply of goods from 1944 to 1945, if already covered by the contract of 1944 and fully paid for under it as held by the trial Court and the High Court, would fail for want of consideration. So, the whole case of a fresh contract of l946 is also quite untenable.12. We may now turn to the plaintiffs claim to the benefit of Section 70 of the Contract Act put forward in this Court for the first time. It was urged, on the strength of Piloo Dhunjishaw Sidhwa v. Municipal Corpn. of the City of Poona, (1970) 3 SCR 415 = (AIR 1970 SC 1201 ) that, so long as the claim is there, this Court is not precluded from applying Section 70 of the Contract Act for the first time even on appeal by special leave. We, however, think that the conditions for the applicability of this Section must at least be set out in the pleadings and proved. As already noticed above, the plaintiff has not said anywhere in the plaint that any supplies were made by the plaintiff to the Army authorities. On the other hand, the assertion is that the supplies were made by the contractor (defendant No. 2).Section 70 of the Contract Act enables the person who actually supplies goods or renders some services, not intending to do so gratuitously, to claim compensation from the Person who enjoys the benefit of the supply made or services rendered. It is a liability which arises on equitable grounds even though express agreement or a contract may not be proved.13. The plaintiffs authority to realise monies was confined to recoveries of price for supplies made by defendant No. 2 under an express agreement between the defendants. And, the plaintiffs suit too is confined to claims on behalf of defendant No. 2, the actual supplier, for supplies under the contract and not outside it. It is urged not without force, on behalf of the Union of India, that evidence could have been led to show that the plaintiff made no supplies whatsoever, if the plaintiff had set up even an alternative case to that effect in conflict with the case actually set up of supplies made by the pro forma defendant No. 2 (i e the supplying contractor)14. Another contention on behalf of the Union of India was that S. 70 of the Contract Act only applies to cases where goods are supplied or services rendered without any payment whatsoever having been made for them. It is submitted that the supplying contractor having been fully paid at the contracted rates as found by the High Court and the Trial Court, no claim under Section 70 of the Contract Act was maintainable at all. Application of that Section, it is contended, would be excluded where the contract made is shown to have operated and to have been discharged as held by the High Court and the Trial Court. The learned Counsel for the Union of India was however not certain whether the finding was correct that the defendant contractor was actually fully paid, in accordance with the teens of the original contract, at unenhanced stipulated rates. We have not been taken through the whole evidence so as to be able to re-assess it on that question. We are not ordinarily called upon to do so on an appeal by special leave. We, therefore, prefer to rest our decision on the claim under Section 70 of the Contract Act on the ground that, on the case set up in the plaint, the plaintiff cannot fall back on any liability under Section 70 of the Contract Act when the supplies were obviously not actually made by the plaintiff.15. If, however, it is true that the plaintiff company, which claimed payment of Rs. 1,90,042/0/5 on bilk submitted, from 22-l-l 947 to 30-3-l948 for unpaid for supplies at enhanced rates, with interest at 7 l/2% per annum upto l-l-1950, so as to bring the total claim to Rs. 2,28,397/14/5, has not received payment at all for supplies of wood at rates stipulated for in the written contract for any period covering the contract for supplies made from 1-4-1944 to 31-3-1945, because the actual rates at which the payments were to be made were disputed and remained undecided due to no fault of the supplying contractor or the plaintiff, we hope that, as suggested by the learned Counsel for the Union of India, the plaintiff will be able to obtain payment for the unpaid for supplies actually made at rates specified in the original contract although the suit for it is barred by time. Even though the plaintiff may be morally entitled to that much payment at least we are unable to decree the suit for a time barred claim.
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11. We think that insurmountable difficulties also lie in the path of acceptance of each of the last mentioned submissions of the plaintiff appellant. We will take up the first submission first. We find that there was no case set up by the plaintiff that there was any privity of contract between the plaintiff and the Union of India. The mere statement in the letter ofthat the contract with the supplier Mahesh Chandra was deemed to be terminated with effect fromand that the subsequent supplies were by the clients of Shri Khurshed Lal (that is to say the plaintiff) was useless. It contradicts the assertion made in the paragraph 6 of the plaint that the wood was actually supplied by the contractor Mahesh Chandra (defendant No. 2) uptoThese bare assertions of some Military Officers could not alter facts, or the law or result in a fresh contract with the plaintiff. The difficulty which confronted this new case, sought to be set up by the plaintiff, is even more formidable than mere want of signature of a duly authorised sanctioning authority on the letter. The constitutional provisions of Section 175 (3) of the Government of India Act would bar mere assertions of this kind from operating as evidence of a contract. Again as held by the High Court, the claim for the price of goods supplied on a fresh contract, even if assumed to have come into existence in 1946, would be beyond three years in 1950 so that it would be barred by three years rule of limitation prescribed by Article 52.Moreover, a fresh agreement in 1946 to pay for a past supply of goods from 1944 to 1945, if already covered by the contract of 1944 and fully paid for under it as held by the trial Court and the High Court, would fail for want of consideration. So, the whole case of a fresh contract of l946 is also quitehowever, think that the conditions for the applicability of this Section must at least be set out in the pleadings and proved. As already noticed above, the plaintiff has not said anywhere in the plaint that any supplies were made by the plaintiff to the Army authorities. On the other hand, the assertion is that the supplies were made by the contractor (defendant No. 2).Section 70 of the Contract Act enables the person who actually supplies goods or renders some services, not intending to do so gratuitously, to claim compensation from the Person who enjoys the benefit of the supply made or services rendered. It is a liability which arises on equitable grounds even though express agreement or a contract may not behave not been taken through the whole evidence so as to be able toit on that question. We are not ordinarily called upon to do so on an appeal by special leave. We, therefore, prefer to rest our decision on the claim under Section 70 of the Contract Act on the ground that, on the case set up in the plaint, the plaintiff cannot fall back on any liability under Section 70 of the Contract Act when the supplies were obviously not actually made by the plaintiff.15. If, however, it is true that the plaintiff company, which claimed payment of Rs. 1,90,042/0/5 on bilk submitted, from948 for unpaid for supplies at enhanced rates, with interest at 7 l/2% per annum uptoso as to bring the total claim to Rs. 2,28,397/14/5, has not received payment at all for supplies of wood at rates stipulated for in the written contract for any period covering the contract for supplies made from5, because the actual rates at which the payments were to be made were disputed and remained undecided due to no fault of the supplying contractor or the plaintiff, we hope that, as suggested by the learned Counsel for the Union of India, the plaintiff will be able to obtain payment for the unpaid for supplies actually made at rates specified in the original contract although the suit for it is barred by time. Even though the plaintiff may be morally entitled to that much payment at least we are unable to decree the suit for a time barred claim.
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M/S. North Brook Jute Co. Ltd.And Another Vs. Their Workmen | "endeavour" could be held to extend to decide the question on which differences have arisen or are likely one way or the other. It was rightly pointed out by the Labour Appellate Tribunal in Kemp and Co. Ltd. v. Their Workmen, 1955-1 Lab LJ 48, that :"the Works Committee are normally concerned with problems arising in the day to day working of the concern and the functions of the Works Committee are to ascertain the grievances of the employees and when occasion arises to arrive at some agreement also. But the function and the responsibility of the works committee as their very nomenclature indicates cannot go beyond recommendation and as such they are more or less bodies who in the first instance endeavour to compose the differences and the final decision rests with the union as a whole."5. The fact that the workmens representatives on the Works Committee agreed to the introduction of the rationalisation scheme is therefore in no way binding on the workmen or their Union.6. The next argument was that whatever alteration was effected in the conditions of service, was made, on the date when notice under S. 9A was given and that being before the 13th December there was no contravention of S. 33. There is in our opinion no substance in this contention. Section 9A in accordance with which the notice was given provides that"No employer who proposes to effect any change in the conditions of service applicable to any workmen in respect of any matter specified in the Fourth Schedule, shall effect such change(a) without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or(b) within twenty-one days of giving such notice;".With the proviso to the section we are not concerned. What is important to notice is that in making this provision for notice the Legislature was clearly contemplating three stages. The first stage is the proposal by the employer to effect a change; the next stage is when he gives a notice and the last stage is when he effects the change in the conditions of service on the expiry of 21 days from the date of the notice. The conditions of service do not stand changed, either when the proposal is made or the notice is given but only when the change is actually effected.That actual change takes place when the new conditions of service are actually introduced.7. It necessarily follows that in deciding for the purpose of S. 33 of the Act, at what point of time the employer "alters" any conditions of service, we have to ascertain the time when the change of which notice under S. 9A is given is actually effected. If at the time the change is effected, a proceeding is pending before a Tribunal, S. 33 of time when the employer proposes to change the conditions of service and the point of time when the notice is given are equally irrelevant.8. It was further contended that in any case, the alteration was not to the prejudice of the workmen. How such a contention can be seriously made is difficult to understand. The whole basis of the scheme was so to allocate the machines to workmen, as to enable fewer workmen to work the machines than the number previously required so that surplus workmen could be discharged. The object was to decrease the cost of production. The method adopted for attaining the object was to obtain more work from the workmen for approximately the same wages. However laudable the object be, it cannot be doubted for a moment that the scheme prejudiced the workmen seriously. Mr. Fraser, the companys witness stated in his evidence that while previously for every machine in the batching department, there were two hands, now there are two hands for two machines. In giving the reasons for the introduction of the scheme, he said"we had surplus labour in both the mills. The company was losing heavily. Till then we depended on natural wastage and did not think of rationalisation; in November last year, the decision was taken to take action on rationalisation."9. Rationalisation which was introduced had therefore two effects - first that some workers would become surplus and would face discharge; and secondly, the other workmen would have to carry more workload. The introduction of the rationalisation scheme was therefore clearly an alteration of conditions of service to the prejudice of the workmen.10. The alteration was made on the 16th December, when reference as regards the scheme had already been made and was pending before the Industrial Tribunal. The Tribunal has therefore rightly held that this introduction was a contravention of S. 33.11. Lastly it was contended that even if the introduction of the rationalisation scheme was a contravention of S. 33 the workmens remedy lay in applying under S. 33A, and that they were not entitled to strike work.Section 33A no doubt gives the workmen aggrieved by the contravention by the employer of S. 33 the right to apply to the Tribunal for relief ; but the existence of this remedy does not mean that the workmen were bound to work under the altered conditions of service, even though these were in clear contravention of law. When they refused to do the additional work which the rationalisation scheme required them to do, they refused to do work, which the employer had no right in law to ask them to do. It is difficult to say that this amounted to a "strike" by the workmen; but even if it could be said to be a "strike" such strike was certainly not illegal or unjustified.12. Our conclusion therefore is that the Tribunal was right in its opinion that the closure of the mills by the employer amounted to an illegal lock-out, and the workmen, unable to work in consequence of the lock-out, are entitled to wages for the period of absence, caused by such lock-out. | 0[ds]9. Rationalisation which was introduced had therefore two effects - first that some workers would become surplus and would face discharge; and secondly, the other workmen would have to carry more workload. The introduction of the rationalisation scheme was therefore clearly an alteration of conditions of service to the prejudice of the workmen.10. The alteration was made on the 16th December, when reference as regards the scheme had already been made and was pending before the Industrial Tribunal. The Tribunal has therefore rightly held that this introduction was a contravention of S. 33.11. Lastly it was contended that even if the introduction of the rationalisation scheme was a contravention of S. 33 the workmens remedy lay in applying under S. 33A, and that they were not entitled to strike work.Section 33A no doubt gives the workmen aggrieved by the contravention by the employer of S. 33 the right to apply to the Tribunal for relief ; but the existence of this remedy does not mean that the workmen were bound to work under the altered conditions of service, even though these were in clear contravention of law. When they refused to do the additional work which the rationalisation scheme required them to do, they refused to do work, which the employer had no right in law to ask them to do. It is difficult to say that this amounted to a "strike" by the workmen; but even if it could be said to be a "strike" such strike was certainly not illegal or unjustified.12. Our conclusion therefore is that the Tribunal was right in its opinion that the closure of the mills by the employer amounted to an illegal lock-out, and the workmen, unable to work in consequence of the lock-out, are entitled to wages for the period of absence, caused by such lock-out. | 0 | 2,126 | 333 | ### 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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"endeavour" could be held to extend to decide the question on which differences have arisen or are likely one way or the other. It was rightly pointed out by the Labour Appellate Tribunal in Kemp and Co. Ltd. v. Their Workmen, 1955-1 Lab LJ 48, that :"the Works Committee are normally concerned with problems arising in the day to day working of the concern and the functions of the Works Committee are to ascertain the grievances of the employees and when occasion arises to arrive at some agreement also. But the function and the responsibility of the works committee as their very nomenclature indicates cannot go beyond recommendation and as such they are more or less bodies who in the first instance endeavour to compose the differences and the final decision rests with the union as a whole."5. The fact that the workmens representatives on the Works Committee agreed to the introduction of the rationalisation scheme is therefore in no way binding on the workmen or their Union.6. The next argument was that whatever alteration was effected in the conditions of service, was made, on the date when notice under S. 9A was given and that being before the 13th December there was no contravention of S. 33. There is in our opinion no substance in this contention. Section 9A in accordance with which the notice was given provides that"No employer who proposes to effect any change in the conditions of service applicable to any workmen in respect of any matter specified in the Fourth Schedule, shall effect such change(a) without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or(b) within twenty-one days of giving such notice;".With the proviso to the section we are not concerned. What is important to notice is that in making this provision for notice the Legislature was clearly contemplating three stages. The first stage is the proposal by the employer to effect a change; the next stage is when he gives a notice and the last stage is when he effects the change in the conditions of service on the expiry of 21 days from the date of the notice. The conditions of service do not stand changed, either when the proposal is made or the notice is given but only when the change is actually effected.That actual change takes place when the new conditions of service are actually introduced.7. It necessarily follows that in deciding for the purpose of S. 33 of the Act, at what point of time the employer "alters" any conditions of service, we have to ascertain the time when the change of which notice under S. 9A is given is actually effected. If at the time the change is effected, a proceeding is pending before a Tribunal, S. 33 of time when the employer proposes to change the conditions of service and the point of time when the notice is given are equally irrelevant.8. It was further contended that in any case, the alteration was not to the prejudice of the workmen. How such a contention can be seriously made is difficult to understand. The whole basis of the scheme was so to allocate the machines to workmen, as to enable fewer workmen to work the machines than the number previously required so that surplus workmen could be discharged. The object was to decrease the cost of production. The method adopted for attaining the object was to obtain more work from the workmen for approximately the same wages. However laudable the object be, it cannot be doubted for a moment that the scheme prejudiced the workmen seriously. Mr. Fraser, the companys witness stated in his evidence that while previously for every machine in the batching department, there were two hands, now there are two hands for two machines. In giving the reasons for the introduction of the scheme, he said"we had surplus labour in both the mills. The company was losing heavily. Till then we depended on natural wastage and did not think of rationalisation; in November last year, the decision was taken to take action on rationalisation."9. Rationalisation which was introduced had therefore two effects - first that some workers would become surplus and would face discharge; and secondly, the other workmen would have to carry more workload. The introduction of the rationalisation scheme was therefore clearly an alteration of conditions of service to the prejudice of the workmen.10. The alteration was made on the 16th December, when reference as regards the scheme had already been made and was pending before the Industrial Tribunal. The Tribunal has therefore rightly held that this introduction was a contravention of S. 33.11. Lastly it was contended that even if the introduction of the rationalisation scheme was a contravention of S. 33 the workmens remedy lay in applying under S. 33A, and that they were not entitled to strike work.Section 33A no doubt gives the workmen aggrieved by the contravention by the employer of S. 33 the right to apply to the Tribunal for relief ; but the existence of this remedy does not mean that the workmen were bound to work under the altered conditions of service, even though these were in clear contravention of law. When they refused to do the additional work which the rationalisation scheme required them to do, they refused to do work, which the employer had no right in law to ask them to do. It is difficult to say that this amounted to a "strike" by the workmen; but even if it could be said to be a "strike" such strike was certainly not illegal or unjustified.12. Our conclusion therefore is that the Tribunal was right in its opinion that the closure of the mills by the employer amounted to an illegal lock-out, and the workmen, unable to work in consequence of the lock-out, are entitled to wages for the period of absence, caused by such lock-out.
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9. Rationalisation which was introduced had therefore two effects - first that some workers would become surplus and would face discharge; and secondly, the other workmen would have to carry more workload. The introduction of the rationalisation scheme was therefore clearly an alteration of conditions of service to the prejudice of the workmen.10. The alteration was made on the 16th December, when reference as regards the scheme had already been made and was pending before the Industrial Tribunal. The Tribunal has therefore rightly held that this introduction was a contravention of S. 33.11. Lastly it was contended that even if the introduction of the rationalisation scheme was a contravention of S. 33 the workmens remedy lay in applying under S. 33A, and that they were not entitled to strike work.Section 33A no doubt gives the workmen aggrieved by the contravention by the employer of S. 33 the right to apply to the Tribunal for relief ; but the existence of this remedy does not mean that the workmen were bound to work under the altered conditions of service, even though these were in clear contravention of law. When they refused to do the additional work which the rationalisation scheme required them to do, they refused to do work, which the employer had no right in law to ask them to do. It is difficult to say that this amounted to a "strike" by the workmen; but even if it could be said to be a "strike" such strike was certainly not illegal or unjustified.12. Our conclusion therefore is that the Tribunal was right in its opinion that the closure of the mills by the employer amounted to an illegal lock-out, and the workmen, unable to work in consequence of the lock-out, are entitled to wages for the period of absence, caused by such lock-out.
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Administrator Of S.U.,U.T.I. Vs. Garware Polyster Ltd | cases which confer specified power to them. The Appellants herein cannot claim any priority or preference in the matter of realization of their dues over the other debenture holders. Each debenture holders has a pari passu right with each other, as is evident from clause 2.2. 42. In J.K. (Bombay) (P) Ltd. (supra), it was held : "The Court could not have completed, as contended by the appellants, their rights which were still incomplete or order the company to execute a debenture trust deed or the second mortgage, and thus set up the appellants and the other Sch. B creditors as secured creditors against the rest of the unsecured creditors. Such an order could not be passed as it would be contrary to and in breach of the right of distribution pari passu of the joint body of unsecured creditors." [See also Andhra Bank Vs. Official Liquidator and Anr., 2005 (3) SCALE 178 ] 43. In view of the our findings aforementioned, we are of the opinion that the Appellants herein having failed to establish that they could hold the entire scheme to ransom so as to stall the proceedings as a result whereof the majority of debenture holders would be deprived, the purpose or object motivating the Appellants to advance such a huge amount to the Respondent against issue of debentures is a matter of little or of no concern to the Respondent - company or other debenture holders. A special or a new right cannot be found in favour of the Appellants in the agreement when it creates none. The scheme applies equally to all debenture holders and as such the Appellants cannot be treated as a separate class. Once the Respondent-Company prima facie showed that the scheme is fair and reasonable and also that the requisite majority of the debenture holders recorded their decision in its favour, the court in absence of any unforeseen unjustness or unreasonableness therein ought not to reject the same.44. The Company Judge by reason of the impugned judgment while exercising a supervisory jurisdiction only accepted the scheme. The High Courts decision is not being questioned as unfair.45. The Respondent in view of the Scheme has no remedy other than approaching the High Court under Section 391 of the Companies Act. 46. In Sardar Amarjit Singh Kalra (Dead) by Lrs. and Others etc. vs. Pramod Gupta (Smt.) (Dead) by Lrs. and Others etc. [(2003) 3 SCC 272] , this Court stated : "As far as possible, courts must always aim to preserve and protect the rights of the parties and extend help to enforce them rather than deny relief and thereby render the rights themselves otiose, "ubi jusibi remedium" (where there is a right, there is a remedy) being a basic principle of jurisprudence. Such a course would be more conducive and better conform to a fair, reasonable and proper administration of justice." 47. We may at this stage refer to the decisions relied upon by Dr. Dhawan. 48. In the case of Nanakram Vs. Kundalrai [(1986) 3 SCC 83] as also Nutan Kumar and Others Vs. IInd Additional District Judge and Others [(2002) 8 SCC 31] the question which arose for consideration was as to whether a lease in violation of statutory provision was void. Such a question does not arise for consideration herein. 49. In Delhi Development Authority Vs. Durga Chand Kaushish [(1973) 2 SCC 825] , the court was concerned with the interpretation of a deed of lease. It was noticed: "19. Both sides have relied upon certain passages in Odgers Construction of Deeds and Statutes (5th Edn. 1967). There (at pp. 28-29), the First General Rule of Interpretation formulated is: "The meaning of the document or of a particular part of it is therefore to be sought for in the document itself". That is, undoubtedly, the primary rule of construction to which Sections 90 to 94 of the Indian Evidence Act give statutory recognition and effect, with certain exceptions contained in Sections 95 to 98 of the Act. Of course, "the document" means "the document" read as a whole and not piecemeal." (Emphasis supplied) 50. There is no quarrel with the aforementioned position of law. 51. In Smt. Rajbir Kaur and Another Vs. M/s. S. Chokesiri and Co. [(1989) 1 SCC 19] , the court was concerned with the interpretation as to whether a document in question was a lease or a licence. The said decision has been rendered on the fact of the said case and on the basis of the evidence brought on records as to whether the tailor and the ice-cream vendors had been put in exclusive possession in the tenanted premises. The said decision has no application to the fact of the present case. 52. Delta International Ltd. Vs. Shyam Sundar Ganeriwalla and Another [(1999) 4 SCC 545] again dealt with a similar question. It was observed: "27. Lastly, it is to be noted that if the document is a camouflage as stated earlier, the mask or veil is required to be removed for determining the true intent and purpose of the document. In the present case, there is no pleading by the defendants that the document was a camouflage so as to defeat the rights of a tenant who had inducted the appellant or that of the owner of the premises. As stated earlier, the document contemplates three types of agreements, one, that of a leave and licence; secondly, in case a consent is obtained from the tenant (sic landlord), for execution of a sub-lease which would create an interest in the property as a sub-tenant and thirdly, in case of a sub-lease, for purchase of equipment, fitting and fixtures at a price of Rs 2,50,000. The second and third parts of the agreement never came into operation. Hence, for the reasons discussed above, we hold that the agreement dated 18-7-1970 is a deed of "leave and licence" and not a "lease". 53. The said decision also has no application in the instant case. | 0[ds]28. We may at the outset notice that clause 7.8 of the said agreement uses the expression any or all of debenture holders. The parties to the agreement, therefore, have used two different expressions in the said agreement, namely, (1) debenture-holders/trustees; and (2) any or all of debenture holders. We have noticed hereinbefore that the debenture holders have been referred to in the agreement in the said capacity collectively. The definition of debenture holders contains the expression means which shows that it is not an expansive definition. The category of the debenture holders are confined to those who in terms of the agreement are holders of the debentures deriving their title thereto.29. In terms of clause 10 of the Trust Deed, the rights, privileges and conditions attached to the debentures may be varied, modified or abrogated only in accordance with the Articles of Association of the Company and the Act and with the consent of the debenture holders by a special resolution passed at the meeting of the debenture holders but in terms of the proviso appended thereto nothing in such resolution shall be operative against the company where such resolution modifies or varies the terms and conditions governing the debentures, if the same are not acceptable to the company. The Trust Deed speaks of such resolution also in terms of clauses 22 and 24 thereof. Clause 25 provides that such a resolution may be adopted by circulation of letter or letters. The provisions of the Trust Deed and in particular clauses 22, 23, 24 and 25 thereof leave no manner of doubt that a resolution has to be passed in the manner laid down therein and/or in terms of the Companies Act.30. The common subscription agreement is an investment/ loan agreement. The provisions contained therein are required to be read in their entirety and for the said purpose it is permissible to read the negative covenants with the positive covenants. It will, however, not be correct to say that the common subscription agreement has to be interpreted on its own without any reference to the trust deed. The provisions of the trust deed, in our opinion, can be referred to for the purpose of giving a true meaning to the agreement, as there does not exist any conflict between the two. They are to be considered together for the purpose of finding out as to how the agreement can be worked out.This Court in this case is not called upon to interpret the nature of a document or the covenants entered into by and between the parties. The agreement specifies the rights and privileges of the parties thereto and in particular the rights and privileges of the debenture holder either collectively or individually.32. The underlying or basic thread of the agreement vis-a-vis the trust deed is that the majority principle was accepted by the authorities. They do not provide for an unanimity; or any veto power in favour of one debenture holder so as to scuttle the decision of the majority.Section 391 read with Section 393 of the Act postulate that where a compromise or arrangement is proposed between a company and its creditors or any class of them; or between a company and its members or any class of them, the court is required to direct holding of meetings of creditors or class of creditors or members or class of members who are concerned with such a scheme. In the event majority of the creditors representing three-fourths in value of the creditors or class of creditors or members or class of members, as the case may be, present or voting either in person or by proxy at such a meeting accord their approval thereto thus put to vote, whereupon, the court may consider the question of grant of sanction thereto. Section 391(1)(a) enjoins that requisite information therefor should be placed for consideration before the voters, in terms whereof the creditors or class of creditors can take an informed decision in relation thereto. The court, however, would not grant sanction to such a scheme only because the same reflects the will of the majority of the creditors or a class of them but it must consider all aspects of the matter so as to arrive at a finding that the scheme is fair, just and reasonable and does not contravene public policy or any statutory provision. Such a care or caution is required to be exercised by all courts including the Civil Court in terms of Order XXIII, Rule 1 of the Code of Civil Procedure.It is difficult for us to agree with the submission of Dr. Dhawan that clause 7.5 puts a total embargo on the part of the company or other creditors to file a compromise under Section 391 of the Companies Act without obtaining the consent of all debenture holders. Clause 7.5 neither can be read in such a manner nor should be read. Such a construction would be unwarranted having regard to the fact that two different expressions have been used in different clauses. Wherever a right has been conferred upon an individual debenture holder, the agreement used the expression any or all the debenture holders as contrasted by all debenture holders. The debenture holders are required to exercise their right through the trustee save and except in the cases which confer specified power to them. The Appellants herein cannot claim any priority or preference in the matter of realization of their dues over the other debenture holders. Each debenture holders has a pari passu right with each other, as is evident from clause 2.2.In view of the our findings aforementioned, we are of the opinion that the Appellants herein having failed to establish that they could hold the entire scheme to ransom so as to stall the proceedings as a result whereof the majority of debenture holders would be deprived, the purpose or object motivating the Appellants to advance such a huge amount to the Respondent against issue of debentures is a matter of little or of no concern to the Respondent - company or other debenture holders. A special or a new right cannot be found in favour of the Appellants in the agreement when it creates none. The scheme applies equally to all debenture holders and as such the Appellants cannot be treated as a separate class. Once the Respondent-Company prima facie showed that the scheme is fair and reasonable and also that the requisite majority of the debenture holders recorded their decision in its favour, the court in absence of any unforeseen unjustness or unreasonableness therein ought not to reject the same.44. The Company Judge by reason of the impugned judgment while exercising a supervisory jurisdiction only accepted the scheme. The High Courts decision is not being questioned as unfair.45. The Respondent in view of the Scheme has no remedy other than approaching the High Court under Section 391 of the Companies Act.In Delhi Development Authority Vs. Durga Chand Kaushish [(1973) 2 SCC 825] , the court was concerned with the interpretation of a deed of lease. It wasBoth sides have relied upon certain passages in Odgers Construction of Deeds and Statutes (5th Edn. 1967). There (at pp. 28-29), the First General Rule of Interpretation formulated is: "The meaning of the document or of a particular part of it is therefore to be sought for in the document itself". That is, undoubtedly, the primary rule of construction to which Sections 90 to 94 of the Indian Evidence Act give statutory recognition and effect, with certain exceptions contained in Sections 95 to 98 of the Act. Of course, "the document" means "the document" read as a whole and not piecemeal.". There is no quarrel with the aforementioned position of law. | 0 | 6,921 | 1,400 | ### 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:
cases which confer specified power to them. The Appellants herein cannot claim any priority or preference in the matter of realization of their dues over the other debenture holders. Each debenture holders has a pari passu right with each other, as is evident from clause 2.2. 42. In J.K. (Bombay) (P) Ltd. (supra), it was held : "The Court could not have completed, as contended by the appellants, their rights which were still incomplete or order the company to execute a debenture trust deed or the second mortgage, and thus set up the appellants and the other Sch. B creditors as secured creditors against the rest of the unsecured creditors. Such an order could not be passed as it would be contrary to and in breach of the right of distribution pari passu of the joint body of unsecured creditors." [See also Andhra Bank Vs. Official Liquidator and Anr., 2005 (3) SCALE 178 ] 43. In view of the our findings aforementioned, we are of the opinion that the Appellants herein having failed to establish that they could hold the entire scheme to ransom so as to stall the proceedings as a result whereof the majority of debenture holders would be deprived, the purpose or object motivating the Appellants to advance such a huge amount to the Respondent against issue of debentures is a matter of little or of no concern to the Respondent - company or other debenture holders. A special or a new right cannot be found in favour of the Appellants in the agreement when it creates none. The scheme applies equally to all debenture holders and as such the Appellants cannot be treated as a separate class. Once the Respondent-Company prima facie showed that the scheme is fair and reasonable and also that the requisite majority of the debenture holders recorded their decision in its favour, the court in absence of any unforeseen unjustness or unreasonableness therein ought not to reject the same.44. The Company Judge by reason of the impugned judgment while exercising a supervisory jurisdiction only accepted the scheme. The High Courts decision is not being questioned as unfair.45. The Respondent in view of the Scheme has no remedy other than approaching the High Court under Section 391 of the Companies Act. 46. In Sardar Amarjit Singh Kalra (Dead) by Lrs. and Others etc. vs. Pramod Gupta (Smt.) (Dead) by Lrs. and Others etc. [(2003) 3 SCC 272] , this Court stated : "As far as possible, courts must always aim to preserve and protect the rights of the parties and extend help to enforce them rather than deny relief and thereby render the rights themselves otiose, "ubi jusibi remedium" (where there is a right, there is a remedy) being a basic principle of jurisprudence. Such a course would be more conducive and better conform to a fair, reasonable and proper administration of justice." 47. We may at this stage refer to the decisions relied upon by Dr. Dhawan. 48. In the case of Nanakram Vs. Kundalrai [(1986) 3 SCC 83] as also Nutan Kumar and Others Vs. IInd Additional District Judge and Others [(2002) 8 SCC 31] the question which arose for consideration was as to whether a lease in violation of statutory provision was void. Such a question does not arise for consideration herein. 49. In Delhi Development Authority Vs. Durga Chand Kaushish [(1973) 2 SCC 825] , the court was concerned with the interpretation of a deed of lease. It was noticed: "19. Both sides have relied upon certain passages in Odgers Construction of Deeds and Statutes (5th Edn. 1967). There (at pp. 28-29), the First General Rule of Interpretation formulated is: "The meaning of the document or of a particular part of it is therefore to be sought for in the document itself". That is, undoubtedly, the primary rule of construction to which Sections 90 to 94 of the Indian Evidence Act give statutory recognition and effect, with certain exceptions contained in Sections 95 to 98 of the Act. Of course, "the document" means "the document" read as a whole and not piecemeal." (Emphasis supplied) 50. There is no quarrel with the aforementioned position of law. 51. In Smt. Rajbir Kaur and Another Vs. M/s. S. Chokesiri and Co. [(1989) 1 SCC 19] , the court was concerned with the interpretation as to whether a document in question was a lease or a licence. The said decision has been rendered on the fact of the said case and on the basis of the evidence brought on records as to whether the tailor and the ice-cream vendors had been put in exclusive possession in the tenanted premises. The said decision has no application to the fact of the present case. 52. Delta International Ltd. Vs. Shyam Sundar Ganeriwalla and Another [(1999) 4 SCC 545] again dealt with a similar question. It was observed: "27. Lastly, it is to be noted that if the document is a camouflage as stated earlier, the mask or veil is required to be removed for determining the true intent and purpose of the document. In the present case, there is no pleading by the defendants that the document was a camouflage so as to defeat the rights of a tenant who had inducted the appellant or that of the owner of the premises. As stated earlier, the document contemplates three types of agreements, one, that of a leave and licence; secondly, in case a consent is obtained from the tenant (sic landlord), for execution of a sub-lease which would create an interest in the property as a sub-tenant and thirdly, in case of a sub-lease, for purchase of equipment, fitting and fixtures at a price of Rs 2,50,000. The second and third parts of the agreement never came into operation. Hence, for the reasons discussed above, we hold that the agreement dated 18-7-1970 is a deed of "leave and licence" and not a "lease". 53. The said decision also has no application in the instant case.
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0
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an investment/ loan agreement. The provisions contained therein are required to be read in their entirety and for the said purpose it is permissible to read the negative covenants with the positive covenants. It will, however, not be correct to say that the common subscription agreement has to be interpreted on its own without any reference to the trust deed. The provisions of the trust deed, in our opinion, can be referred to for the purpose of giving a true meaning to the agreement, as there does not exist any conflict between the two. They are to be considered together for the purpose of finding out as to how the agreement can be worked out.This Court in this case is not called upon to interpret the nature of a document or the covenants entered into by and between the parties. The agreement specifies the rights and privileges of the parties thereto and in particular the rights and privileges of the debenture holder either collectively or individually.32. The underlying or basic thread of the agreement vis-a-vis the trust deed is that the majority principle was accepted by the authorities. They do not provide for an unanimity; or any veto power in favour of one debenture holder so as to scuttle the decision of the majority.Section 391 read with Section 393 of the Act postulate that where a compromise or arrangement is proposed between a company and its creditors or any class of them; or between a company and its members or any class of them, the court is required to direct holding of meetings of creditors or class of creditors or members or class of members who are concerned with such a scheme. In the event majority of the creditors representing three-fourths in value of the creditors or class of creditors or members or class of members, as the case may be, present or voting either in person or by proxy at such a meeting accord their approval thereto thus put to vote, whereupon, the court may consider the question of grant of sanction thereto. Section 391(1)(a) enjoins that requisite information therefor should be placed for consideration before the voters, in terms whereof the creditors or class of creditors can take an informed decision in relation thereto. The court, however, would not grant sanction to such a scheme only because the same reflects the will of the majority of the creditors or a class of them but it must consider all aspects of the matter so as to arrive at a finding that the scheme is fair, just and reasonable and does not contravene public policy or any statutory provision. Such a care or caution is required to be exercised by all courts including the Civil Court in terms of Order XXIII, Rule 1 of the Code of Civil Procedure.It is difficult for us to agree with the submission of Dr. Dhawan that clause 7.5 puts a total embargo on the part of the company or other creditors to file a compromise under Section 391 of the Companies Act without obtaining the consent of all debenture holders. Clause 7.5 neither can be read in such a manner nor should be read. Such a construction would be unwarranted having regard to the fact that two different expressions have been used in different clauses. Wherever a right has been conferred upon an individual debenture holder, the agreement used the expression any or all the debenture holders as contrasted by all debenture holders. The debenture holders are required to exercise their right through the trustee save and except in the cases which confer specified power to them. The Appellants herein cannot claim any priority or preference in the matter of realization of their dues over the other debenture holders. Each debenture holders has a pari passu right with each other, as is evident from clause 2.2.In view of the our findings aforementioned, we are of the opinion that the Appellants herein having failed to establish that they could hold the entire scheme to ransom so as to stall the proceedings as a result whereof the majority of debenture holders would be deprived, the purpose or object motivating the Appellants to advance such a huge amount to the Respondent against issue of debentures is a matter of little or of no concern to the Respondent - company or other debenture holders. A special or a new right cannot be found in favour of the Appellants in the agreement when it creates none. The scheme applies equally to all debenture holders and as such the Appellants cannot be treated as a separate class. Once the Respondent-Company prima facie showed that the scheme is fair and reasonable and also that the requisite majority of the debenture holders recorded their decision in its favour, the court in absence of any unforeseen unjustness or unreasonableness therein ought not to reject the same.44. The Company Judge by reason of the impugned judgment while exercising a supervisory jurisdiction only accepted the scheme. The High Courts decision is not being questioned as unfair.45. The Respondent in view of the Scheme has no remedy other than approaching the High Court under Section 391 of the Companies Act.In Delhi Development Authority Vs. Durga Chand Kaushish [(1973) 2 SCC 825] , the court was concerned with the interpretation of a deed of lease. It wasBoth sides have relied upon certain passages in Odgers Construction of Deeds and Statutes (5th Edn. 1967). There (at pp. 28-29), the First General Rule of Interpretation formulated is: "The meaning of the document or of a particular part of it is therefore to be sought for in the document itself". That is, undoubtedly, the primary rule of construction to which Sections 90 to 94 of the Indian Evidence Act give statutory recognition and effect, with certain exceptions contained in Sections 95 to 98 of the Act. Of course, "the document" means "the document" read as a whole and not piecemeal.". There is no quarrel with the aforementioned position of law.
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National Highways Authority Of India Vs. M/S Jsc Centrodostroy | Arbitral Tribunal awarded to the respondent-claimant following sums under dispute No. 2:- ?10.1 The Claimant shall be paid by the Respondent an amount of Rs. 63,58,368/- on account of additional cost incurred on the Bank Guarantees furnished to the Respondent in terms of the Contract.10.2 The Claimant shall also be paid by the Respondent a sum of Rs. 43,84,987/- towards interest on the above amount for period upto the date of this award i.e. 28.02.2013.10.3 Post award interest shall be payable in addition on the awarded sum of Rs. 63,58,368/- at the rate of 12% per annum (simple) from the date of award to the actual date of payment of the said sum. No post award interest may, however, be paid in case the sums awarded under 10.1 and 10.2 above are paid within 90 days of the date of the award.?6. The award passed by the Arbitral Tribunal proceeds on the ground that the additional costs as a result of revision in service tax which the respondent-claimant was required to bear, were covered under Clause 70.8 of COPA. It was observed that service tax was not an input to the indices used in Prices Adjustment Formulae in Clause 70.3. It concluded as under:- ?The claim in question is for reimbursement of additional costs resulting from change in Central Law which came into effect after the base date as defined in Sub-Clause 70.8. In terms of the Sub-clause, such costs are not payable separately if the same have already been taken into account in indexing of the inputs in Price Adjustment Formulae under Sub-clause 70.3. The Claimant has placed on record a letter dated 24.01.2008 from the Economic Advisor, Ministry of Commerce and Industry, confirming that Service Tax was not an input into indexing of Whole Sale Price Indices, used in India.?7. The award passed by the Arbitral Tribunal was challenged by the appellant by filing OMP No.623 of 2013 under Section 34 of the Arbitration and Conciliation Act, 1966 before the High Court of Delhi. By order dated 21.10.2013 Single Judge of the High Court dismissed said petition. In an appeal arising therefrom i.e. in FAO(OS)588 of 2013, the Division Bench of the High Court by its judgment and order dated 20.12.2013, which is presently under challenge, affirmed the view taken by Single Judge and dismissed the appeal. 8. The facts leading to the present appeal arising out of FAO(AS)590 of 2013 are more or less identical. In that matter identical claims were raised on two counts but arising out of a different contract by the very same claimant. The Arbitral Tribunal granted Rs.8,84,969/- in respect of dispute no. 1 with interest @ 12% per annum under identical two heads as found in the earlier case. Similarly, in respect of dispute no.2, the Arbitral Tribunal awarded Rs.42,35,385/- with interest @ 12% per annum. 9. In NHAI v. ITD Cementation India Ltd.(Supra) impact of Clauses 70.1 to 70.7 on one hand and 70.8 of COPA was considered and the view taken by the Arbitral Tribunal as affirmed by the High Court was accepted. In that case impact as a result of increase in the rates of royalty and issue whether the Arbitral Tribunal was right in observing that the case was covered under Clause 70.8 of COPA were considered by this court. The view taken by the Arbitral Tribunal was found to be consistent with the terms of the contract and challenge at the instance of National Highways Authorities of India was negated. 10. The fact that there had been revision in the rates of service tax from time to time was not disputed by the appellant. Ms. Indu Malhotra, learned Senior Counsel appearing for the appellants in both the matters, however, submitted that only those claims which were constructional inputs alone would be eligible to be covered under Clause 70 of COPA. In her submission, the service tax on bank guarantee could have been avoided by the claimant, if the bank guarantee was replaced by tendering cash and that the facility of bank guarantee was optional and at the discretion of the claimant. Similarly, money advances were given for the benefit of the claimant and any cost associated with such benefit would not come within the scope of Clause 70.8. Mr. Biswajit Das, learned Advocate appearing for the respondent-claimant in both the appeals however, submitted that the bank guarantees were required to be given under the contract itself and such requirement was stipulated by the appellant primarily to reduce its financial risk and to bind the claimant for its performance or protecting the money advanced to the respondents. In his submission, furnishing a performance bank guarantee @ 10% of the contract price was a mandatory condition of the contract under Clauses 10.1 and 10.2 of COPA. Though at some stage the option of performance bond was mentioned in COPA, such option was withdrawn making performance security to be compulsorily in the form of an unconditional bank guarantee. Such requirement being directly referable to essential conditions and arising out of the terms of the Contract, according to him the matter was definitely within the ambit of Clause 70.8 of COPA.11. Having considered rival submissions, we are of the view that the assessment made by the Arbitral Tribunal in the instant case as affirmed by the High Court was definitely within its jurisdiction. It has consistently been laid down by this Court that construction of the terms of a Contract is primarily for an Arbitrator or Arbitral Tribunal to decide and unless the Arbitrator or Arbitral Tribunal construes the contract in such a way that no fair minded or reasonable person could do, no interference by Court is called for. Viewed thus, we do not see any reason or justification to interfere in the matter. The view that the increase in rates of service tax in respect of bank guarantee and insurance premium is directly relatable to terms of the contract and performance under the Contract is certainly a possible view. | 0[ds]11. Having considered rival submissions, we are of the view that the assessment made by the Arbitral Tribunal in the instant case as affirmed by the High Court was definitely within its jurisdiction. It has consistently been laid down by this Court that construction of the terms of a Contract is primarily for an Arbitrator or Arbitral Tribunal to decide and unless the Arbitrator or Arbitral Tribunal construes the contract in such a way that no fair minded or reasonable person could do, no interference by Court is called for. Viewed thus, we do not see any reason or justification to interfere in the matter. The view that the increase in rates of service tax in respect of bank guarantee and insurance premium is directly relatable to terms of the contract and performance under the Contract is certainly a possible view. | 0 | 2,039 | 153 | ### 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:
Arbitral Tribunal awarded to the respondent-claimant following sums under dispute No. 2:- ?10.1 The Claimant shall be paid by the Respondent an amount of Rs. 63,58,368/- on account of additional cost incurred on the Bank Guarantees furnished to the Respondent in terms of the Contract.10.2 The Claimant shall also be paid by the Respondent a sum of Rs. 43,84,987/- towards interest on the above amount for period upto the date of this award i.e. 28.02.2013.10.3 Post award interest shall be payable in addition on the awarded sum of Rs. 63,58,368/- at the rate of 12% per annum (simple) from the date of award to the actual date of payment of the said sum. No post award interest may, however, be paid in case the sums awarded under 10.1 and 10.2 above are paid within 90 days of the date of the award.?6. The award passed by the Arbitral Tribunal proceeds on the ground that the additional costs as a result of revision in service tax which the respondent-claimant was required to bear, were covered under Clause 70.8 of COPA. It was observed that service tax was not an input to the indices used in Prices Adjustment Formulae in Clause 70.3. It concluded as under:- ?The claim in question is for reimbursement of additional costs resulting from change in Central Law which came into effect after the base date as defined in Sub-Clause 70.8. In terms of the Sub-clause, such costs are not payable separately if the same have already been taken into account in indexing of the inputs in Price Adjustment Formulae under Sub-clause 70.3. The Claimant has placed on record a letter dated 24.01.2008 from the Economic Advisor, Ministry of Commerce and Industry, confirming that Service Tax was not an input into indexing of Whole Sale Price Indices, used in India.?7. The award passed by the Arbitral Tribunal was challenged by the appellant by filing OMP No.623 of 2013 under Section 34 of the Arbitration and Conciliation Act, 1966 before the High Court of Delhi. By order dated 21.10.2013 Single Judge of the High Court dismissed said petition. In an appeal arising therefrom i.e. in FAO(OS)588 of 2013, the Division Bench of the High Court by its judgment and order dated 20.12.2013, which is presently under challenge, affirmed the view taken by Single Judge and dismissed the appeal. 8. The facts leading to the present appeal arising out of FAO(AS)590 of 2013 are more or less identical. In that matter identical claims were raised on two counts but arising out of a different contract by the very same claimant. The Arbitral Tribunal granted Rs.8,84,969/- in respect of dispute no. 1 with interest @ 12% per annum under identical two heads as found in the earlier case. Similarly, in respect of dispute no.2, the Arbitral Tribunal awarded Rs.42,35,385/- with interest @ 12% per annum. 9. In NHAI v. ITD Cementation India Ltd.(Supra) impact of Clauses 70.1 to 70.7 on one hand and 70.8 of COPA was considered and the view taken by the Arbitral Tribunal as affirmed by the High Court was accepted. In that case impact as a result of increase in the rates of royalty and issue whether the Arbitral Tribunal was right in observing that the case was covered under Clause 70.8 of COPA were considered by this court. The view taken by the Arbitral Tribunal was found to be consistent with the terms of the contract and challenge at the instance of National Highways Authorities of India was negated. 10. The fact that there had been revision in the rates of service tax from time to time was not disputed by the appellant. Ms. Indu Malhotra, learned Senior Counsel appearing for the appellants in both the matters, however, submitted that only those claims which were constructional inputs alone would be eligible to be covered under Clause 70 of COPA. In her submission, the service tax on bank guarantee could have been avoided by the claimant, if the bank guarantee was replaced by tendering cash and that the facility of bank guarantee was optional and at the discretion of the claimant. Similarly, money advances were given for the benefit of the claimant and any cost associated with such benefit would not come within the scope of Clause 70.8. Mr. Biswajit Das, learned Advocate appearing for the respondent-claimant in both the appeals however, submitted that the bank guarantees were required to be given under the contract itself and such requirement was stipulated by the appellant primarily to reduce its financial risk and to bind the claimant for its performance or protecting the money advanced to the respondents. In his submission, furnishing a performance bank guarantee @ 10% of the contract price was a mandatory condition of the contract under Clauses 10.1 and 10.2 of COPA. Though at some stage the option of performance bond was mentioned in COPA, such option was withdrawn making performance security to be compulsorily in the form of an unconditional bank guarantee. Such requirement being directly referable to essential conditions and arising out of the terms of the Contract, according to him the matter was definitely within the ambit of Clause 70.8 of COPA.11. Having considered rival submissions, we are of the view that the assessment made by the Arbitral Tribunal in the instant case as affirmed by the High Court was definitely within its jurisdiction. It has consistently been laid down by this Court that construction of the terms of a Contract is primarily for an Arbitrator or Arbitral Tribunal to decide and unless the Arbitrator or Arbitral Tribunal construes the contract in such a way that no fair minded or reasonable person could do, no interference by Court is called for. Viewed thus, we do not see any reason or justification to interfere in the matter. The view that the increase in rates of service tax in respect of bank guarantee and insurance premium is directly relatable to terms of the contract and performance under the Contract is certainly a possible view.
### Response:
0
### Explanation:
11. Having considered rival submissions, we are of the view that the assessment made by the Arbitral Tribunal in the instant case as affirmed by the High Court was definitely within its jurisdiction. It has consistently been laid down by this Court that construction of the terms of a Contract is primarily for an Arbitrator or Arbitral Tribunal to decide and unless the Arbitrator or Arbitral Tribunal construes the contract in such a way that no fair minded or reasonable person could do, no interference by Court is called for. Viewed thus, we do not see any reason or justification to interfere in the matter. The view that the increase in rates of service tax in respect of bank guarantee and insurance premium is directly relatable to terms of the contract and performance under the Contract is certainly a possible view.
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Vinod Kumar Vs. State of Madhya Pradesh | stated before the court. His subsequent conduct in not being able to identify these appellants straight away before the sessions court throws doubt on to the fact that he could identify these appellants. Therefore, in the absence of there being no identification parade, it will be doubtful to hold that Manohar Lal PW-18 has identified the accused successfully before the session judge. However, this does not mean that evidence of PW-18 could be discarded in toto. (8) The prosecution case is that Manohar Lal was the cleaner of the taxi of deceased Vijay Singh. It is the prosecution case that PW-18 was present at the time the taxi of the deceased was engaged by the accused on 20.12.1985. It is also the case of the prosecution that Manohar Lal in the first instance travelled along with deceased and the accused upto petrol pump to fill the petrol. Therefore, even though Manohar Lal was not in a position to identify the accused persons, it is to be accepted that Manohar Lal did see Vijay Singh being engaged by three persons to hire the taxi of Vijay Singh to go to Mathura from Gurgaon on a fare of Rs. 650/-. Therefore, this part of the evidence of PW-18 establishes that the deceased did go with three persons on a tour to Mathura on the evening of 20th of December, 1985 to that extent evidence of PW-18 can be believed.(9) The next part of the prosecution case is that on the night of 21/12/1985 i.e. a day after the taxi was engaged by these appellants, these accused persons with the deceased Vijay Singh landed in the house of PW-8 Nankibai at village Ranipura. This is spoken by PW-8 herself. She stated in her evidence that A-2 and A-3 are her cousins children, hence, known to her. She introduced them to PWs-6, 7 and 9. It is also stated in her evidence that these appellants along with deceased had dinner in her house. PW-7 Satto Bai who is daughter-in-law of PW-8 Nankibai had prepared the food for them that night. Though she did not know A-1 and the deceased, she has identified both these persons as those who stayed in the house that night. Her evidence coupled with that of PWs-6, 7 and 9 has to be appreciated in the background of the fact that the deceaseds body was found in their village next morning as also his car somewhere near the village Ranipura and also the accused persons were arrested next morning near about that village. It is also to be noted that at the time of arrest, A-1 had an injury in his hand. The two courts below have rightly appreciated these facts and accepted the prosecution case in regard to presence of these persons including the deceased in Ranipura village on 21/12/1985. It is also to be noted that the defence set up by A-1 that he was not travelling with other two accused persons is not believed by the two courts below. Therefore, if we consider the chain of incident, it is clear that on 20th of December, 1985, three persons engaged the taxi of Vijay Singh to travel to Mathura but later on they went to Ranipura where they stayed over night and on the next day the vehicle as well as dead body of Vijay Singh was found in or near the village Ranipura. The appellants were also found in the early morning at about 4.30 a.m. around 3 kms. away from Ranipura, this fact completes a chain of circumstantial evidence to show that the appellant and the deceased were together from the evening of 20th December till the night of 21st December. The prosecution having established this fact, in our opinion, it falls on the appellants to establish the fact that where and at what point of time they parted company with Vijay Singh; This not having been done, it leads to the irresistible conclusion that the appellant alone could have been responsible for the death of Vijay Singh. These circumstances are further strengthened by the fact that the finger prints lifted from the car of the deceased and analysed by PWs-10 and 22 tallied with the finger prints of the accused persons. Though the trial court in this regard has not placed reliance on the evidence of the finger print experts, the High Court, on a reconsideration, has accepted this evidence and we too agree with the High Court because of the fact that this part of the prosecution case has not been challenged by the appellants.(10) It is then argued by Mr. Singh that there was absolutely no motive of the appellants to commit the murder of Vijay Singh. In our opinion, the prosecution case indicates that the appellants wanted to steal the car of the deceased but because of intervening circumstances, they could not fulfil this object. At any rate, the prosecution having established beyond reasonable doubt that these accused persons are responsible for the murder of the deceased, assuming that there is no motive that would not, in any manner, destabilized the prosecutions case. (11) We may submit at this stage that the learned counsel for the appellants has placed reliance in other judgments of this Court in the cases of Kanan and Ors. V. State of Kerala, [ AIR 1979 SC 1127 ], Kansa Behera v. State of Orissa [JT 1987 (2) SC 193 (2)] and State of Rajasthan v. Shri Teja Singh and Ors. [2001 Scale 670] to point out to us that in all cases based on circumstances the courts should be satisfied that those circumstances establish the fact that it is the accused alone who could never cause the crime. Having perused the said judgment, we do not think that the appellants could take advantage of these judgment since, in our opinion, in the case in hand, the prosecution has established by proved circumstances that it is the accused persons who are guilty of the murder of the deceased. | 0[ds]We do find some force in the argument of Mr. Singh but not to the whole extent. It is true that Manohar Lal had stated that he had seen the accused persons on 20/12/1985 in the bus stand of Gurgaon four or five times and their names he had written in a diary. Diary has not been produced nor there is any other material to show that Manohar Lal had seen these accused persons as many times as stated before the court. His subsequent conduct in not being able to identify these appellants straight away before the sessions court throws doubt on to the fact that he could identify these appellants. Therefore, in the absence of there being no identification parade, it will be doubtful to hold that Manohar Lalhas identified the accused successfully before the session judge. However, this does not mean that evidence ofcould be discarded inshe did not knowand the deceased, she has identified both these persons as those who stayed in the house that night. Her evidence coupled with that of7 and 9 has to be appreciated in the background of the fact that the deceaseds body was found in their village next morning as also his car somewhere near the village Ranipura and also the accused persons were arrested next morning near about thatprosecution having established this fact, in our opinion, it falls on the appellants to establish the fact that where and at what point of time they parted company with Vijay Singh; This not having been done, it leads to the irresistible conclusion that the appellant alone could have been responsible for the death of Vijay Singh. These circumstances are further strengthened by the fact that the finger prints lifted from the car of the deceased and analysed byand 22 tallied with the finger prints of the accused persons. Though the trial court in this regard has not placed reliance on the evidence of the finger print experts, the High Court, on a reconsideration, has accepted this evidence and we too agree with the High Court because of the fact that this part of the prosecution case has not been challenged by the appellants.(10) It is then argued by Mr. Singh that there was absolutely no motive of the appellants to commit the murder of Vijay Singh. In our opinion, the prosecution case indicates that the appellants wanted to steal the car of the deceased but because of intervening circumstances, they could not fulfil this object. At any rate, the prosecution having established beyond reasonable doubt that these accused persons are responsible for the murder of the deceased, assuming that there is no motive that would not, in any manner, destabilized the prosecutionsperused the said judgment, we do not think that the appellants could take advantage of these judgment since, in our opinion, in the case in hand, the prosecution has established by proved circumstances that it is the accused persons who are guilty of the murder of the deceased. | 0 | 2,573 | 537 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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stated before the court. His subsequent conduct in not being able to identify these appellants straight away before the sessions court throws doubt on to the fact that he could identify these appellants. Therefore, in the absence of there being no identification parade, it will be doubtful to hold that Manohar Lal PW-18 has identified the accused successfully before the session judge. However, this does not mean that evidence of PW-18 could be discarded in toto. (8) The prosecution case is that Manohar Lal was the cleaner of the taxi of deceased Vijay Singh. It is the prosecution case that PW-18 was present at the time the taxi of the deceased was engaged by the accused on 20.12.1985. It is also the case of the prosecution that Manohar Lal in the first instance travelled along with deceased and the accused upto petrol pump to fill the petrol. Therefore, even though Manohar Lal was not in a position to identify the accused persons, it is to be accepted that Manohar Lal did see Vijay Singh being engaged by three persons to hire the taxi of Vijay Singh to go to Mathura from Gurgaon on a fare of Rs. 650/-. Therefore, this part of the evidence of PW-18 establishes that the deceased did go with three persons on a tour to Mathura on the evening of 20th of December, 1985 to that extent evidence of PW-18 can be believed.(9) The next part of the prosecution case is that on the night of 21/12/1985 i.e. a day after the taxi was engaged by these appellants, these accused persons with the deceased Vijay Singh landed in the house of PW-8 Nankibai at village Ranipura. This is spoken by PW-8 herself. She stated in her evidence that A-2 and A-3 are her cousins children, hence, known to her. She introduced them to PWs-6, 7 and 9. It is also stated in her evidence that these appellants along with deceased had dinner in her house. PW-7 Satto Bai who is daughter-in-law of PW-8 Nankibai had prepared the food for them that night. Though she did not know A-1 and the deceased, she has identified both these persons as those who stayed in the house that night. Her evidence coupled with that of PWs-6, 7 and 9 has to be appreciated in the background of the fact that the deceaseds body was found in their village next morning as also his car somewhere near the village Ranipura and also the accused persons were arrested next morning near about that village. It is also to be noted that at the time of arrest, A-1 had an injury in his hand. The two courts below have rightly appreciated these facts and accepted the prosecution case in regard to presence of these persons including the deceased in Ranipura village on 21/12/1985. It is also to be noted that the defence set up by A-1 that he was not travelling with other two accused persons is not believed by the two courts below. Therefore, if we consider the chain of incident, it is clear that on 20th of December, 1985, three persons engaged the taxi of Vijay Singh to travel to Mathura but later on they went to Ranipura where they stayed over night and on the next day the vehicle as well as dead body of Vijay Singh was found in or near the village Ranipura. The appellants were also found in the early morning at about 4.30 a.m. around 3 kms. away from Ranipura, this fact completes a chain of circumstantial evidence to show that the appellant and the deceased were together from the evening of 20th December till the night of 21st December. The prosecution having established this fact, in our opinion, it falls on the appellants to establish the fact that where and at what point of time they parted company with Vijay Singh; This not having been done, it leads to the irresistible conclusion that the appellant alone could have been responsible for the death of Vijay Singh. These circumstances are further strengthened by the fact that the finger prints lifted from the car of the deceased and analysed by PWs-10 and 22 tallied with the finger prints of the accused persons. Though the trial court in this regard has not placed reliance on the evidence of the finger print experts, the High Court, on a reconsideration, has accepted this evidence and we too agree with the High Court because of the fact that this part of the prosecution case has not been challenged by the appellants.(10) It is then argued by Mr. Singh that there was absolutely no motive of the appellants to commit the murder of Vijay Singh. In our opinion, the prosecution case indicates that the appellants wanted to steal the car of the deceased but because of intervening circumstances, they could not fulfil this object. At any rate, the prosecution having established beyond reasonable doubt that these accused persons are responsible for the murder of the deceased, assuming that there is no motive that would not, in any manner, destabilized the prosecutions case. (11) We may submit at this stage that the learned counsel for the appellants has placed reliance in other judgments of this Court in the cases of Kanan and Ors. V. State of Kerala, [ AIR 1979 SC 1127 ], Kansa Behera v. State of Orissa [JT 1987 (2) SC 193 (2)] and State of Rajasthan v. Shri Teja Singh and Ors. [2001 Scale 670] to point out to us that in all cases based on circumstances the courts should be satisfied that those circumstances establish the fact that it is the accused alone who could never cause the crime. Having perused the said judgment, we do not think that the appellants could take advantage of these judgment since, in our opinion, in the case in hand, the prosecution has established by proved circumstances that it is the accused persons who are guilty of the murder of the deceased.
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We do find some force in the argument of Mr. Singh but not to the whole extent. It is true that Manohar Lal had stated that he had seen the accused persons on 20/12/1985 in the bus stand of Gurgaon four or five times and their names he had written in a diary. Diary has not been produced nor there is any other material to show that Manohar Lal had seen these accused persons as many times as stated before the court. His subsequent conduct in not being able to identify these appellants straight away before the sessions court throws doubt on to the fact that he could identify these appellants. Therefore, in the absence of there being no identification parade, it will be doubtful to hold that Manohar Lalhas identified the accused successfully before the session judge. However, this does not mean that evidence ofcould be discarded inshe did not knowand the deceased, she has identified both these persons as those who stayed in the house that night. Her evidence coupled with that of7 and 9 has to be appreciated in the background of the fact that the deceaseds body was found in their village next morning as also his car somewhere near the village Ranipura and also the accused persons were arrested next morning near about thatprosecution having established this fact, in our opinion, it falls on the appellants to establish the fact that where and at what point of time they parted company with Vijay Singh; This not having been done, it leads to the irresistible conclusion that the appellant alone could have been responsible for the death of Vijay Singh. These circumstances are further strengthened by the fact that the finger prints lifted from the car of the deceased and analysed byand 22 tallied with the finger prints of the accused persons. Though the trial court in this regard has not placed reliance on the evidence of the finger print experts, the High Court, on a reconsideration, has accepted this evidence and we too agree with the High Court because of the fact that this part of the prosecution case has not been challenged by the appellants.(10) It is then argued by Mr. Singh that there was absolutely no motive of the appellants to commit the murder of Vijay Singh. In our opinion, the prosecution case indicates that the appellants wanted to steal the car of the deceased but because of intervening circumstances, they could not fulfil this object. At any rate, the prosecution having established beyond reasonable doubt that these accused persons are responsible for the murder of the deceased, assuming that there is no motive that would not, in any manner, destabilized the prosecutionsperused the said judgment, we do not think that the appellants could take advantage of these judgment since, in our opinion, in the case in hand, the prosecution has established by proved circumstances that it is the accused persons who are guilty of the murder of the deceased.
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Mohd. Dhana Ali Khan Vs. State of West Bengal | at night in a running train in a third class compartment and the effect of it would be to deter peaceful citizens from traveling in trains at night and this would undoubtedly disturb the even tempo of the life of the community. For these reasons we are satisfied that the ground mentioned in the order did have a nexus with the disturbance of public order.The fourth contention put forward was that under s.14 of the Maintenance of Internal Security Act it was open to the Central Government to revoke or modify the order of detention after receiving a report from the State Government and therefore t here must be some material to show that the Government of India applied its mind under section 14. In the first place s.14 merely confers a discretion on the Central Government to revoke or modify an order of detention made by the State Government . It does not confer any right or privilege on the detenu. It is for the Central Government to revoke or modify after the report is submitted to it. The mere fact that the Central Government does not choose to revoke or modify the order of detention without anything more cannot necessarily lead to the irresistible inference that the Central Government failed to, apply its mind. So far as the State Government is concerned, its duty comes to an end after it has sent a report regard ing the detention order to the Central Government. In these circumstance it cannot be said by any stretch of imagination that as Central Government did not apply its mind under section 14 of the Act, this would invalidate the order of detention. There is no material before us to show that the Central Government did not apply its mind at all under section 14 of the Act. The argument on this score is, therefore, rejected. 5. Lastly, it was contended that it would appear from the affidavit filed by the District Magistrate that while detaining the petitioner the District Magistrate was not only influenced by the ground served on the petitioner but also by other materials on the record. In paragraph 5 of the counter affidavit the District Magistrate stated as follows:- I say that I made the detention order after being bonafide satisfied from the materials on record (relating to the detention of the detenu) that with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order it is necessary to detain him under the provisions of the Maintenance of Internal Security Act, 1971. 1 further say that the ground furnished to the detenu is the only ground on which I based my satisfaction for making the detention order."It would thus appear that the District Magistrate has taken a contradictory stand. A close perusal of his counter- affidavit would disclose that he was influenced not only by the ground which was served on the petitioner but also by other materials on the record. The history sheet of the detenu which was placed before the District Magistrate has been produced before us and we find that there were as many as four incidents many of which relate to thefts in running trains. It is true that in another place in his affidavit, the District Magistrate has stated that he was satisfied only on the basis of the incident mentioned in the ground served on the petitioner. But this is contradictory to what he has stated in the opening paragraph 5 of the counter affidavit. In these circumstances, therefore, we are satisfied that the District Magistrate before passing the order of detention had other material also before him. It cannot be said to what extent the District Magistrate was influenced by the other materials and not by the material which is mentioned in the ground of detention. Thus the order of detention suffers from a very serious infirmity which goes to the root of the matter. The liberty of the subject being an extremely precious right, where any infraction of such a right is involved the court must act as a watch-dog and a sentinel on the qui vive to see that every benefit of the lacunae goes to the detenu. 6. We are fortified i n our view by reason of the decision of this Court in Khudiram Das v. State of West Bengal(A.I.R. 1975 S.C. 550)where their Lordships observed as follows:- "It is, therefore, not only the right of the court, but also its duty as well to examine what are the basic facts and materials which actually and in fact weighed with the detaining authority in reaching the requisite satisfaction. The judicial scrutiny cannot be foreclosed by a mere statement of the detaining authority that it has taken into account only certain basic facts and materials and though other basic facts and materials were before it, it has not allowed them to influence its satisfaction. The Court is entitled to examine the correctness of this statement and determine for itself whether there were any other basic facts of materials apart from those admitted by it, which could, have reasonably influenced the decision of the detaining authority and for that purpose, the Court can certainly require the detaining authority to produce and make available to the Court the entire record of the case which was before it. That is the least the Court can do to ensure observance of the requirements of law by the detaining authority." Learned counsel appearing for the State justified the order of detention on the ground that there is an express statement made by the District Magistrate that he was satisfied only on the incident mentioned in the ground of detention. This argument however is not tenable because it is not supported by a perusal of the Affidavit filed by the District Magistrate as a whole. We are therefore of the opinion that the order of detention must be set aside and the petitioner be set at liberty forthwith. | 1[ds]In the counter affidavit, however, the District Magistrate has explained that he had to pass almost eight orders of detention on the 23rd August and all of them had to be typed out and as 26th August which was a Sunday had intervened, it was not possible for him to send the report to the Government earlier. In the circumstances, we are satisfied that the explanation given by the District Magistrate in his affidavit is convincing and satisfactoryThis matter appears to be concluded by a decision of this Court in John Martin v. State of West Bengal (JUDGMENT in W.P. No. 467/74 dt. 21-1-1975) following Hardan Shahs case where a a similar argument put forward by this Court was rejected outright. This contention of the learned counsel does not therefore surviveFrom a perusal of this we are unable to accept the contention of the petitioner that this ground has no nexus with the disturbance of public order. It is true that the ground contains a single incident of theft of valuable property from some passengers traveling in a running train and may amount to robbery. But that does not by itself take the case out of the purview of the provisions of the Maintenance of Internal Security Act. There are two pertinent facts which emerge from the grounds which must be noted. In the first place the allegation is that the petitioner had snatched away a wrist watch and a gold chain after putting the passengers of the compartment to fear of jeath. Secondly, the theft had taken place at night in a running train in a third class compartment and the effect of it would be to deter peaceful citizens from traveling in trains at night and this would undoubtedly disturb the even tempo of the life of the community. For these reasons we are satisfied that the ground mentioned in the order did have a nexus with the disturbance of public orderThis argument however is not tenable because it is not supported by a perusal of the Affidavit filed by the District Magistrate as a whole. We are therefore of the opinion that the order of detention must be set aside and the petitioner be set at liberty forthwithIn the first place s.14 merely confers a discretion on the Central Government to revoke or modify an order of detention made by the State Government . It does not confer any right or privilege on the detenu. It is for the Central Government to revoke or modify after the report is submitted to it. The mere fact that the Central Government does not choose to revoke or modify the order of detention without anything more cannot necessarily lead to the irresistible inference that the Central Government failed to, apply its mind. So far as the State Government is concerned, its duty comes to an end after it has sent a report regard ing the detention order to the Central Government. In these circumstance it cannot be said by any stretch of imagination that as Central Government did not apply its mind under section 14 of the Act, this would invalidate the order of detention. There is no material before us to show that the Central Government did not apply its mind at all under section 14 of the Act. The argument on this score is, therefore, rejected. | 1 | 1,782 | 595 | ### 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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at night in a running train in a third class compartment and the effect of it would be to deter peaceful citizens from traveling in trains at night and this would undoubtedly disturb the even tempo of the life of the community. For these reasons we are satisfied that the ground mentioned in the order did have a nexus with the disturbance of public order.The fourth contention put forward was that under s.14 of the Maintenance of Internal Security Act it was open to the Central Government to revoke or modify the order of detention after receiving a report from the State Government and therefore t here must be some material to show that the Government of India applied its mind under section 14. In the first place s.14 merely confers a discretion on the Central Government to revoke or modify an order of detention made by the State Government . It does not confer any right or privilege on the detenu. It is for the Central Government to revoke or modify after the report is submitted to it. The mere fact that the Central Government does not choose to revoke or modify the order of detention without anything more cannot necessarily lead to the irresistible inference that the Central Government failed to, apply its mind. So far as the State Government is concerned, its duty comes to an end after it has sent a report regard ing the detention order to the Central Government. In these circumstance it cannot be said by any stretch of imagination that as Central Government did not apply its mind under section 14 of the Act, this would invalidate the order of detention. There is no material before us to show that the Central Government did not apply its mind at all under section 14 of the Act. The argument on this score is, therefore, rejected. 5. Lastly, it was contended that it would appear from the affidavit filed by the District Magistrate that while detaining the petitioner the District Magistrate was not only influenced by the ground served on the petitioner but also by other materials on the record. In paragraph 5 of the counter affidavit the District Magistrate stated as follows:- I say that I made the detention order after being bonafide satisfied from the materials on record (relating to the detention of the detenu) that with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order it is necessary to detain him under the provisions of the Maintenance of Internal Security Act, 1971. 1 further say that the ground furnished to the detenu is the only ground on which I based my satisfaction for making the detention order."It would thus appear that the District Magistrate has taken a contradictory stand. A close perusal of his counter- affidavit would disclose that he was influenced not only by the ground which was served on the petitioner but also by other materials on the record. The history sheet of the detenu which was placed before the District Magistrate has been produced before us and we find that there were as many as four incidents many of which relate to thefts in running trains. It is true that in another place in his affidavit, the District Magistrate has stated that he was satisfied only on the basis of the incident mentioned in the ground served on the petitioner. But this is contradictory to what he has stated in the opening paragraph 5 of the counter affidavit. In these circumstances, therefore, we are satisfied that the District Magistrate before passing the order of detention had other material also before him. It cannot be said to what extent the District Magistrate was influenced by the other materials and not by the material which is mentioned in the ground of detention. Thus the order of detention suffers from a very serious infirmity which goes to the root of the matter. The liberty of the subject being an extremely precious right, where any infraction of such a right is involved the court must act as a watch-dog and a sentinel on the qui vive to see that every benefit of the lacunae goes to the detenu. 6. We are fortified i n our view by reason of the decision of this Court in Khudiram Das v. State of West Bengal(A.I.R. 1975 S.C. 550)where their Lordships observed as follows:- "It is, therefore, not only the right of the court, but also its duty as well to examine what are the basic facts and materials which actually and in fact weighed with the detaining authority in reaching the requisite satisfaction. The judicial scrutiny cannot be foreclosed by a mere statement of the detaining authority that it has taken into account only certain basic facts and materials and though other basic facts and materials were before it, it has not allowed them to influence its satisfaction. The Court is entitled to examine the correctness of this statement and determine for itself whether there were any other basic facts of materials apart from those admitted by it, which could, have reasonably influenced the decision of the detaining authority and for that purpose, the Court can certainly require the detaining authority to produce and make available to the Court the entire record of the case which was before it. That is the least the Court can do to ensure observance of the requirements of law by the detaining authority." Learned counsel appearing for the State justified the order of detention on the ground that there is an express statement made by the District Magistrate that he was satisfied only on the incident mentioned in the ground of detention. This argument however is not tenable because it is not supported by a perusal of the Affidavit filed by the District Magistrate as a whole. We are therefore of the opinion that the order of detention must be set aside and the petitioner be set at liberty forthwith.
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### Explanation:
In the counter affidavit, however, the District Magistrate has explained that he had to pass almost eight orders of detention on the 23rd August and all of them had to be typed out and as 26th August which was a Sunday had intervened, it was not possible for him to send the report to the Government earlier. In the circumstances, we are satisfied that the explanation given by the District Magistrate in his affidavit is convincing and satisfactoryThis matter appears to be concluded by a decision of this Court in John Martin v. State of West Bengal (JUDGMENT in W.P. No. 467/74 dt. 21-1-1975) following Hardan Shahs case where a a similar argument put forward by this Court was rejected outright. This contention of the learned counsel does not therefore surviveFrom a perusal of this we are unable to accept the contention of the petitioner that this ground has no nexus with the disturbance of public order. It is true that the ground contains a single incident of theft of valuable property from some passengers traveling in a running train and may amount to robbery. But that does not by itself take the case out of the purview of the provisions of the Maintenance of Internal Security Act. There are two pertinent facts which emerge from the grounds which must be noted. In the first place the allegation is that the petitioner had snatched away a wrist watch and a gold chain after putting the passengers of the compartment to fear of jeath. Secondly, the theft had taken place at night in a running train in a third class compartment and the effect of it would be to deter peaceful citizens from traveling in trains at night and this would undoubtedly disturb the even tempo of the life of the community. For these reasons we are satisfied that the ground mentioned in the order did have a nexus with the disturbance of public orderThis argument however is not tenable because it is not supported by a perusal of the Affidavit filed by the District Magistrate as a whole. We are therefore of the opinion that the order of detention must be set aside and the petitioner be set at liberty forthwithIn the first place s.14 merely confers a discretion on the Central Government to revoke or modify an order of detention made by the State Government . It does not confer any right or privilege on the detenu. It is for the Central Government to revoke or modify after the report is submitted to it. The mere fact that the Central Government does not choose to revoke or modify the order of detention without anything more cannot necessarily lead to the irresistible inference that the Central Government failed to, apply its mind. So far as the State Government is concerned, its duty comes to an end after it has sent a report regard ing the detention order to the Central Government. In these circumstance it cannot be said by any stretch of imagination that as Central Government did not apply its mind under section 14 of the Act, this would invalidate the order of detention. There is no material before us to show that the Central Government did not apply its mind at all under section 14 of the Act. The argument on this score is, therefore, rejected.
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U O I Vs. West Coast Papers Mills Ltd | for the consider (AIR 1975 SC 824 = 1975 (4) SCC 628 and it was held that Section 14 of the Limitation Act is wide enough to cover such cases where the defects are not merely jurisdictional strictly so called but others more or less neighbours to such deficiencies. Any circumstances, legal or factual, which inhibits entertainment or consideration by the Court of the dispute on the merits comes within the scope of the Section and a liberal touch must inform the interpretation of the Limitation Act which deprives the remedy of one who has a right. 15. The issue as to the legality and reasonability of the rates charged by the Railways Administration having been finally adjudicated upon by this Court, there is nothing wrong in the respondent West Coast Paper Mills Limited having proceed on an assumption that what had remained to be done was a simple direction to the Railway Administration to refund the amount of freight to which it had already been adjudged not entitled to recover. However, the High Court was not inclined to grant such relief in exercise of its writ jurisdiction and, therefore, left open the remedy of civil suit available to the respondents. By no stretch of imagination, it can be said that the West Coast Paper Mills Limited was actuated by malafides or want of good faith in instituting the writ proceedings. In our opinion, the period lost during the pendency of the writ proceedings is liable to be excluded from computing the period of limitation under Section 14(2) of the Limitation Act. Not only we have independently arrived at this finding on the submissions made by the learned counsel for the appellant, but we may also refer to the finding recorded by the 3-Judges Bench vide paragraphs 17th and 18 of the judgment dated 5th February, 2004 wherein it has been specifically held that the respondents were also entitled to get the period during which the writ petition was pending excluded from computing the period of limitation and in that view of the matter, the civil suit was filed within the prescribed period of limitation. The finding recorded by the Trial Court as also the High Court that the respondents were entitled to the benefit of Sections 14 and 15 of the Limitation Act, 1963 has been expressly upheld by the 3-Judges Bench holding, We have no reason to take a different view".16. We are clearly of the opinion that the suit filed by the respondent West Coast Paper Mills Limited was within the period of Limitation.17. So far as the suit filed by Dandeli Ferro Alloys Limited is concerned, Mr. Malhotra, the learned senior counsel for the appellants very fairly conceded that in view of the decision dated 12th November, 1972 which was given by the Tribunal in favour of the respondent Ferro Alloys Limited the suit filed on 18th April, 1974 was certainly within limitation.18. So far as the plea based on Section 78B of the Act is concerned, we find no merit therein as well. Section 78B provides as under: 78B. Notification of Claims to refunds of overcharges and to compensation for losses : A person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by railway or to compensation for the loss, destruction, damage, deterioration or non-delivery of animals or goods delivered to be carried unless his claim to the refund or compensation has been preferred in writing by him or on his behalf -(a) to the railway administration to which the animals or goods were delivered to be carried by railway, or(b) to the railway administration on whose railway the destination station lies, or the loss, destruction, damage or deterioration occurred, within six months from the date of the delivery of the animals or goods for carriage by railway:The crux of the controversy is whether the claim preferred by the respondents can be said to be a claim for refund of an overcharge" 19. The term overcharge is not defined in the Act. In its dictionary meaning overcharge means a charge of a sum more than as permitted by law" (See, The Law Lexicon, P. Ramanatha Aiyar, 1997 Edition, Page 1389). The term came up for the consideration of the High Court of Gujarat in M/s. Shah Raichand Amulakh (D) by his heir vs. Union of India and others 1971 (12) GLR 93. Chief Justice P.N. Bhagwati (as His Lordship then was) interpreted the term by holding that Overcharge is not a term of art. It is an ordinary word of the English language which according to its plain natural sense means any charge in excess of that prescribed or permitted by law. To be an overcharge, a sum of money must partake of the same character as the charge itself or must be of the same genus or class as a charge, it cannot be any other kind of money such as money recovered where nothing is due. Overcharge is simply a charge in excess of that which is due according to law. 20. In the case at hand, the freight rates notified by the Railway Administration in exercise of its statutory power to do so, so long as they were not declared illegal and unreasonable by the Tribunal under Section 41 of the Act, were legal and any one carrying the goods by rail was liable to pay the freight in accordance with those rates. The freight paid by the respondents was as per the rates notified. Thus the present one is not a case of overcharge at all. It is a case of illegal recovery of freight on account of being unreasonable and in violation of Section 28 of the Act, consequent upon such determination by the Tribunal and the decision of the Tribunal having been upheld this Court. A case of illegal charge is distinguishable from the case of overcharge and does not attract the applicability of Section 78B of the Railways Act. | 0[ds]According to him, the West Coast Paper Mills Limited had given gave a notice even before 14th October, 1970 and by repeating the notice under Section 80 of the Code for the second time the West Coast Paper Mills Limited cannot claim its exclusion from computing the period of limitation under Section 15(2) of the Limitation Act. We cannot agree.The issue as to the legality and reasonability of the rates charged by the Railways Administration having been finally adjudicated upon by this Court, there is nothing wrong in the respondent West Coast Paper Mills Limited having proceed on an assumption that what had remained to be done was a simple direction to the Railway Administration to refund the amount of freight to which it had already been adjudged not entitled to recover. However, the High Court was not inclined to grant such relief in exercise of its writ jurisdiction and, therefore, left open the remedy of civil suit available to the respondents. By no stretch of imagination, it can be said that the West Coast Paper Mills Limited was actuated by malafides or want of good faith in instituting the writ proceedings. In our opinion, the period lost during the pendency of the writ proceedings is liable to be excluded from computing the period of limitation under Section 14(2) of the Limitation Act. Not only we have independently arrived at this finding on the submissions made by the learned counsel for the appellant, but we may also refer to the finding recorded by theBench vide paragraphs 17th and 18 of the judgment dated 5th February, 2004 wherein it has been specifically held that the respondents were also entitled to get the period during which the writ petition was pending excluded from computing the period of limitation and in that view of the matter, the civil suit was filed within the prescribed period of limitation. The finding recorded by the Trial Court as also the High Court that the respondents were entitled to the benefit of Sections 14 and 15 of the Limitation Act, 1963 has been expressly upheld by theBench holding, We have no reason to take a different view".16. We are clearly of the opinion that the suit filed by the respondent West Coast Paper Mills Limited was within the period of Limitation.17. So far as the suit filed by Dandeli Ferro Alloys Limited is concerned, Mr. Malhotra, the learned senior counsel for the appellants very fairly conceded that in view of the decision dated 12th November, 1972 which was given by the Tribunal in favour of the respondent Ferro Alloys Limited the suit filed on 18th April, 1974 was certainly within limitation.18. So far as the plea based on Section 78B of the Act is concerned, we find no merit therein as well.In the case at hand, the freight rates notified by the Railway Administration in exercise of its statutory power to do so, so long as they were not declared illegal and unreasonable by the Tribunal under Section 41 of the Act, were legal and any one carrying the goods by rail was liable to pay the freight in accordance with those rates. The freight paid by the respondents was as per the rates notified. Thus the present one is not a case of overcharge at all. It is a case of illegal recovery of freight on account of being unreasonable and in violation of Section 28 of the Act, consequent upon such determination by the Tribunal and the decision of the Tribunal having been upheld this Court. A case of illegal charge is distinguishable from the case of overcharge and does not attract the applicability of Section 78B of the Railways Act. | 0 | 3,286 | 666 | ### 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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for the consider (AIR 1975 SC 824 = 1975 (4) SCC 628 and it was held that Section 14 of the Limitation Act is wide enough to cover such cases where the defects are not merely jurisdictional strictly so called but others more or less neighbours to such deficiencies. Any circumstances, legal or factual, which inhibits entertainment or consideration by the Court of the dispute on the merits comes within the scope of the Section and a liberal touch must inform the interpretation of the Limitation Act which deprives the remedy of one who has a right. 15. The issue as to the legality and reasonability of the rates charged by the Railways Administration having been finally adjudicated upon by this Court, there is nothing wrong in the respondent West Coast Paper Mills Limited having proceed on an assumption that what had remained to be done was a simple direction to the Railway Administration to refund the amount of freight to which it had already been adjudged not entitled to recover. However, the High Court was not inclined to grant such relief in exercise of its writ jurisdiction and, therefore, left open the remedy of civil suit available to the respondents. By no stretch of imagination, it can be said that the West Coast Paper Mills Limited was actuated by malafides or want of good faith in instituting the writ proceedings. In our opinion, the period lost during the pendency of the writ proceedings is liable to be excluded from computing the period of limitation under Section 14(2) of the Limitation Act. Not only we have independently arrived at this finding on the submissions made by the learned counsel for the appellant, but we may also refer to the finding recorded by the 3-Judges Bench vide paragraphs 17th and 18 of the judgment dated 5th February, 2004 wherein it has been specifically held that the respondents were also entitled to get the period during which the writ petition was pending excluded from computing the period of limitation and in that view of the matter, the civil suit was filed within the prescribed period of limitation. The finding recorded by the Trial Court as also the High Court that the respondents were entitled to the benefit of Sections 14 and 15 of the Limitation Act, 1963 has been expressly upheld by the 3-Judges Bench holding, We have no reason to take a different view".16. We are clearly of the opinion that the suit filed by the respondent West Coast Paper Mills Limited was within the period of Limitation.17. So far as the suit filed by Dandeli Ferro Alloys Limited is concerned, Mr. Malhotra, the learned senior counsel for the appellants very fairly conceded that in view of the decision dated 12th November, 1972 which was given by the Tribunal in favour of the respondent Ferro Alloys Limited the suit filed on 18th April, 1974 was certainly within limitation.18. So far as the plea based on Section 78B of the Act is concerned, we find no merit therein as well. Section 78B provides as under: 78B. Notification of Claims to refunds of overcharges and to compensation for losses : A person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by railway or to compensation for the loss, destruction, damage, deterioration or non-delivery of animals or goods delivered to be carried unless his claim to the refund or compensation has been preferred in writing by him or on his behalf -(a) to the railway administration to which the animals or goods were delivered to be carried by railway, or(b) to the railway administration on whose railway the destination station lies, or the loss, destruction, damage or deterioration occurred, within six months from the date of the delivery of the animals or goods for carriage by railway:The crux of the controversy is whether the claim preferred by the respondents can be said to be a claim for refund of an overcharge" 19. The term overcharge is not defined in the Act. In its dictionary meaning overcharge means a charge of a sum more than as permitted by law" (See, The Law Lexicon, P. Ramanatha Aiyar, 1997 Edition, Page 1389). The term came up for the consideration of the High Court of Gujarat in M/s. Shah Raichand Amulakh (D) by his heir vs. Union of India and others 1971 (12) GLR 93. Chief Justice P.N. Bhagwati (as His Lordship then was) interpreted the term by holding that Overcharge is not a term of art. It is an ordinary word of the English language which according to its plain natural sense means any charge in excess of that prescribed or permitted by law. To be an overcharge, a sum of money must partake of the same character as the charge itself or must be of the same genus or class as a charge, it cannot be any other kind of money such as money recovered where nothing is due. Overcharge is simply a charge in excess of that which is due according to law. 20. In the case at hand, the freight rates notified by the Railway Administration in exercise of its statutory power to do so, so long as they were not declared illegal and unreasonable by the Tribunal under Section 41 of the Act, were legal and any one carrying the goods by rail was liable to pay the freight in accordance with those rates. The freight paid by the respondents was as per the rates notified. Thus the present one is not a case of overcharge at all. It is a case of illegal recovery of freight on account of being unreasonable and in violation of Section 28 of the Act, consequent upon such determination by the Tribunal and the decision of the Tribunal having been upheld this Court. A case of illegal charge is distinguishable from the case of overcharge and does not attract the applicability of Section 78B of the Railways Act.
### Response:
0
### Explanation:
According to him, the West Coast Paper Mills Limited had given gave a notice even before 14th October, 1970 and by repeating the notice under Section 80 of the Code for the second time the West Coast Paper Mills Limited cannot claim its exclusion from computing the period of limitation under Section 15(2) of the Limitation Act. We cannot agree.The issue as to the legality and reasonability of the rates charged by the Railways Administration having been finally adjudicated upon by this Court, there is nothing wrong in the respondent West Coast Paper Mills Limited having proceed on an assumption that what had remained to be done was a simple direction to the Railway Administration to refund the amount of freight to which it had already been adjudged not entitled to recover. However, the High Court was not inclined to grant such relief in exercise of its writ jurisdiction and, therefore, left open the remedy of civil suit available to the respondents. By no stretch of imagination, it can be said that the West Coast Paper Mills Limited was actuated by malafides or want of good faith in instituting the writ proceedings. In our opinion, the period lost during the pendency of the writ proceedings is liable to be excluded from computing the period of limitation under Section 14(2) of the Limitation Act. Not only we have independently arrived at this finding on the submissions made by the learned counsel for the appellant, but we may also refer to the finding recorded by theBench vide paragraphs 17th and 18 of the judgment dated 5th February, 2004 wherein it has been specifically held that the respondents were also entitled to get the period during which the writ petition was pending excluded from computing the period of limitation and in that view of the matter, the civil suit was filed within the prescribed period of limitation. The finding recorded by the Trial Court as also the High Court that the respondents were entitled to the benefit of Sections 14 and 15 of the Limitation Act, 1963 has been expressly upheld by theBench holding, We have no reason to take a different view".16. We are clearly of the opinion that the suit filed by the respondent West Coast Paper Mills Limited was within the period of Limitation.17. So far as the suit filed by Dandeli Ferro Alloys Limited is concerned, Mr. Malhotra, the learned senior counsel for the appellants very fairly conceded that in view of the decision dated 12th November, 1972 which was given by the Tribunal in favour of the respondent Ferro Alloys Limited the suit filed on 18th April, 1974 was certainly within limitation.18. So far as the plea based on Section 78B of the Act is concerned, we find no merit therein as well.In the case at hand, the freight rates notified by the Railway Administration in exercise of its statutory power to do so, so long as they were not declared illegal and unreasonable by the Tribunal under Section 41 of the Act, were legal and any one carrying the goods by rail was liable to pay the freight in accordance with those rates. The freight paid by the respondents was as per the rates notified. Thus the present one is not a case of overcharge at all. It is a case of illegal recovery of freight on account of being unreasonable and in violation of Section 28 of the Act, consequent upon such determination by the Tribunal and the decision of the Tribunal having been upheld this Court. A case of illegal charge is distinguishable from the case of overcharge and does not attract the applicability of Section 78B of the Railways Act.
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Tebha Bai and Ors Vs. Raj Kumar Keshwani and Ors | Abhay Manohar Sapre, J. 1. Leave granted. 2. This appeal is directed against the final judgment and order dated 18.04.2016 passed by the High Court of Chhattisgarh, Bilaspur in Misc. Appeal No. 691 of 2015 by which the Division Bench of the High Court dismissed the appeal filed by the Appellants and affirmed the order dated 29.11.2011 passed by the Commissioner for Workmen Compensation, Labour Court, Raipur in Case No. 217/WC Act/05 FATAL whereby the claim of the Appellants herein was rejected inter alia on the ground that the deceased was not in the employment of Respondent No. 1 and that he did not die in an accident while he was on duty. 3. The appeal involves a short question. However, in order to appreciate the same, few relevant facts need to be mentioned hereinbelow. 4. One Shankar Pradhan (husband of Smt. Tebha Bai-Appellant No. 1) was in the employment of Late Mangu Ram Keshwani-father of Respondent Nos. 1-3 as his driver. He used to drive a Truck bearing No. CIR 8214, which was registered in the name of Mangu Ram Keshwani. The Truck was insured with the United India Insurance Company (Respondent No. 4 herein) at the relevant time. 5. On 26.06.1989, Shankar Pradhan while driving the said Truck from Raipur to Nagpur met with an accident and died on the spot. The deceased was aged 50 years and was earning around Rs. 2000/- by way of monthly salary. 6. Appellant No. 1 is wife of the deceased whereas Appellant No. 2 is deceaseds daughter and Appellant No. 3 is deceaseds son. The Appellants being the legal representatives of the deceased filed a claim petition (156/1989) Under Section 166 of the Motor Vehicle Act before MACT, Bhandara (Maharashtra) on 22.12.1989 seeking compensation for the death of their bread earner-Shankar Pradhan. Respondent No. 4-Insurance Company was arrayed as one of the non-applicants in the claim petition. The Appellants prosecuted their claim petition till 02.07.2005 and thereafter, as advised, they withdrew the claim petition on 02.07.2005 with liberty to file an application before the Commissioner, Workman Compensation at Raipur (CH) under the Workman Compensation Act for claiming compensation against the Respondents. This liberty was accordingly granted to them. 7. The Appellants accordingly filed an application (Case No. 217/WC Act/05 FATAL) before the Commissioner, Workman Compensation, Labour Court, Raipur against the Respondents and claimed compensation for the death of Shankar Pradhan. It was inter alia alleged that the deceased was in the employment of father of Respondent Nos. 1-3 as driver, that the deceased used to get Rs. 2000/- by way of monthly salary from the father of Respondent Nos. 1-3, that the deceased while driving the offending Truck met with an accident on 26.06.1989 and died in the said accident, that the offending truck on the date of accident was insured with the Insurance Company (Respondent No. 4) and, therefore, the Respondents are jointly and severally liable to pay the compensation to the Appellants keeping in view the provisions of the Workmen Compensation Act. 8. The Respondents filed their separate written statements. They denied the entire claim of the Appellants contending inter alia that the deceased was not in the employment of father of Respondent Nos. 1-3, that the deceased was neither involved in the accident and nor died in the said accident and that the application is barred by limitation. 9. Parties adduced their evidence. By award dated 29.11.2011, the Commissioner dismissed the application filed by the Appellants by upholding the objections raised by the Respondents. 10. The Appellants felt aggrieved filed an appeal before the High Court. By impugned judgment, the High Court dismissed the appeal in limine giving rise to filing of the present appeal by way of special leave by the legal representatives of the deceased named above. 11. Heard learned Counsel for the parties. 12. Having heard the learned Counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and award reasonable compensation to the Appellants as indicated hereinbelow. 13. We have perused the evidence adduced the parties. In our view, the sworn testimony of Appellant No. 1-wife of the deceased that her husband was in the employment of Late Mangu Ram Keshwani-father of Respondent Nos. 1-3, that he was being paid a monthly salary of Rs. 2000/- per month and that he died while driving the offending vehicle deserves to be accepted as in our opinion there is neither any contradiction in her examination-in-chief or in her cross-examination. Her evidence is throughout consistent. We also find that the Policy (Ex. P-1) issued by the Insurance Company (Respondent No. 4) was in force at the time of accident. 14. Indeed, in our view, there is no reason as to why the Appellants would file a case on false grounds. The Appellants having lost their bread earner at the time when Appellant Nos. 2 and 3 were minors and for compensation they had to run from pillar to post. 15. It is now almost 29 years that the Appellants are still fighting to get some reasonable compensation for the death of their bread earner. | 1[ds]12. Having heard the learned Counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and award reasonable compensation to the Appellants as indicated hereinbelow13. We have perused the evidence adduced the parties. In our view, the sworn testimony of Appellant No. 1-wife of the deceased that her husband was in the employment of Late Mangu Ram Keshwani-father of Respondent Nos. 1-3, that he was being paid a monthly salary of Rs. 2000/- per month and that he died while driving the offending vehicle deserves to be accepted as in our opinion there is neither any contradiction in her examination-in-chief or in her cross-examination. Her evidence is throughout consistent. We also find that the Policy (Ex. P-1) issued by the Insurance Company (Respondent No. 4) was in force at the time of accident14. Indeed, in our view, there is no reason as to why the Appellants would file a case on false grounds. The Appellants having lost their bread earner at the time when Appellant Nos. 2 and 3 were minors and for compensation they had to run from pillar to post15. It is now almost 29 years that the Appellants are still fighting to get some reasonable compensation for the death of their bread earner. | 1 | 976 | 244 | ### 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:
Abhay Manohar Sapre, J. 1. Leave granted. 2. This appeal is directed against the final judgment and order dated 18.04.2016 passed by the High Court of Chhattisgarh, Bilaspur in Misc. Appeal No. 691 of 2015 by which the Division Bench of the High Court dismissed the appeal filed by the Appellants and affirmed the order dated 29.11.2011 passed by the Commissioner for Workmen Compensation, Labour Court, Raipur in Case No. 217/WC Act/05 FATAL whereby the claim of the Appellants herein was rejected inter alia on the ground that the deceased was not in the employment of Respondent No. 1 and that he did not die in an accident while he was on duty. 3. The appeal involves a short question. However, in order to appreciate the same, few relevant facts need to be mentioned hereinbelow. 4. One Shankar Pradhan (husband of Smt. Tebha Bai-Appellant No. 1) was in the employment of Late Mangu Ram Keshwani-father of Respondent Nos. 1-3 as his driver. He used to drive a Truck bearing No. CIR 8214, which was registered in the name of Mangu Ram Keshwani. The Truck was insured with the United India Insurance Company (Respondent No. 4 herein) at the relevant time. 5. On 26.06.1989, Shankar Pradhan while driving the said Truck from Raipur to Nagpur met with an accident and died on the spot. The deceased was aged 50 years and was earning around Rs. 2000/- by way of monthly salary. 6. Appellant No. 1 is wife of the deceased whereas Appellant No. 2 is deceaseds daughter and Appellant No. 3 is deceaseds son. The Appellants being the legal representatives of the deceased filed a claim petition (156/1989) Under Section 166 of the Motor Vehicle Act before MACT, Bhandara (Maharashtra) on 22.12.1989 seeking compensation for the death of their bread earner-Shankar Pradhan. Respondent No. 4-Insurance Company was arrayed as one of the non-applicants in the claim petition. The Appellants prosecuted their claim petition till 02.07.2005 and thereafter, as advised, they withdrew the claim petition on 02.07.2005 with liberty to file an application before the Commissioner, Workman Compensation at Raipur (CH) under the Workman Compensation Act for claiming compensation against the Respondents. This liberty was accordingly granted to them. 7. The Appellants accordingly filed an application (Case No. 217/WC Act/05 FATAL) before the Commissioner, Workman Compensation, Labour Court, Raipur against the Respondents and claimed compensation for the death of Shankar Pradhan. It was inter alia alleged that the deceased was in the employment of father of Respondent Nos. 1-3 as driver, that the deceased used to get Rs. 2000/- by way of monthly salary from the father of Respondent Nos. 1-3, that the deceased while driving the offending Truck met with an accident on 26.06.1989 and died in the said accident, that the offending truck on the date of accident was insured with the Insurance Company (Respondent No. 4) and, therefore, the Respondents are jointly and severally liable to pay the compensation to the Appellants keeping in view the provisions of the Workmen Compensation Act. 8. The Respondents filed their separate written statements. They denied the entire claim of the Appellants contending inter alia that the deceased was not in the employment of father of Respondent Nos. 1-3, that the deceased was neither involved in the accident and nor died in the said accident and that the application is barred by limitation. 9. Parties adduced their evidence. By award dated 29.11.2011, the Commissioner dismissed the application filed by the Appellants by upholding the objections raised by the Respondents. 10. The Appellants felt aggrieved filed an appeal before the High Court. By impugned judgment, the High Court dismissed the appeal in limine giving rise to filing of the present appeal by way of special leave by the legal representatives of the deceased named above. 11. Heard learned Counsel for the parties. 12. Having heard the learned Counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and award reasonable compensation to the Appellants as indicated hereinbelow. 13. We have perused the evidence adduced the parties. In our view, the sworn testimony of Appellant No. 1-wife of the deceased that her husband was in the employment of Late Mangu Ram Keshwani-father of Respondent Nos. 1-3, that he was being paid a monthly salary of Rs. 2000/- per month and that he died while driving the offending vehicle deserves to be accepted as in our opinion there is neither any contradiction in her examination-in-chief or in her cross-examination. Her evidence is throughout consistent. We also find that the Policy (Ex. P-1) issued by the Insurance Company (Respondent No. 4) was in force at the time of accident. 14. Indeed, in our view, there is no reason as to why the Appellants would file a case on false grounds. The Appellants having lost their bread earner at the time when Appellant Nos. 2 and 3 were minors and for compensation they had to run from pillar to post. 15. It is now almost 29 years that the Appellants are still fighting to get some reasonable compensation for the death of their bread earner.
### Response:
1
### Explanation:
12. Having heard the learned Counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and award reasonable compensation to the Appellants as indicated hereinbelow13. We have perused the evidence adduced the parties. In our view, the sworn testimony of Appellant No. 1-wife of the deceased that her husband was in the employment of Late Mangu Ram Keshwani-father of Respondent Nos. 1-3, that he was being paid a monthly salary of Rs. 2000/- per month and that he died while driving the offending vehicle deserves to be accepted as in our opinion there is neither any contradiction in her examination-in-chief or in her cross-examination. Her evidence is throughout consistent. We also find that the Policy (Ex. P-1) issued by the Insurance Company (Respondent No. 4) was in force at the time of accident14. Indeed, in our view, there is no reason as to why the Appellants would file a case on false grounds. The Appellants having lost their bread earner at the time when Appellant Nos. 2 and 3 were minors and for compensation they had to run from pillar to post15. It is now almost 29 years that the Appellants are still fighting to get some reasonable compensation for the death of their bread earner.
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Attar Singh Gurmukh Singh Vs. Income Tax Officer, Ludhiana | to the payee, having regard to the nature of the transaction and the necessity for expeditious settlement thereof and also furnishes evidence to the satisfaction of the Assessing Officer as to the, genuineness of the payment and the identity of the payee." As to the validity of section 40A(3), it was urged that, if the price of the purchased material is not allowed to be adjusted against the sale price of the material sold for want of proof of payment by a crossed cheque or crossed bank draft, then the income-tax levied will not be on the income but it will be on an assumed income. It is said that the provision authorising levy of tax on an assumed income would be a restriction on the right to carry on business, besides being arbitrary In our opinion, there is little merit in this contention. Section 40A(3) must not be read in isolation or to the exclusion of rule 6DD. The section must be read along with the rule. If read together, it will be clear that the provisions are not intended to restrict the business activities. There is no restriction on the assessee in his trading activities. Section 40A(3) only empowers the Assessing Officer to disallow the deduction claimed as expenditure in respect of which payment is not made by crossed cheque or crossed bank draft. The payment by crossed cheque or crossed bank draft is insisted on to enable the assessing authority to ascertain whether the payment was genuine or whether it was out of the income from undisclosed sources. The terms of section 40A(3) are not absolute. Considerations of business expediency and other relevant factors are not excluded. Genuine and bona fide transactions are not taken out of the sweep of the section. It is open to the assessee to furnish to the satisfaction of the Assessing Officer the circumstances under which the payment in the manner prescribed in section 40A(3) was not practicable or would have caused genuine difficulty to the payee. It is also open to the assessee to identify the person who has received the cash payment. Rule 6DD provides that an assessee can be exempted from the requirement of payment by a crossed cheque or crossed bank draft in the circumstances specified under the rule. It will be clear from the provisions of section 40A(3) and rule 6DD that they are intended to regulate business transactions and to prevent the use of unaccounted money or reduce the chances to use black money for business transactions. ( Mudiam Oil Company v. ITO 1973 (92) ITR 519 (AP)) . If the payment is made by a crossed cheque drawn on a bank or crossed bank draft, then it will be easier to ascertain, when deduction is claimed, whether the payment was genuine and whether it was out of the income from disclosed sources. In interpreting a taxing statute, the court cannot be oblivious of the proliferation of black money which is under circulation in our country. Any restraint intended to curb the chances and opportunities to use or create black money should not be regarded as curtailing the freedom of trade or businessAs for the second question it may be stated that the word "expenditure" has not been defined in the Act. It is a word of wide import. Section 40A(3) refers to the expenditure incurred by the assessee in respect of which payment is made. It means that all outgoings are brought under the word "expenditure" for the purpose of the section. The expenditure for purchasing stock-in-trade is one of such outgoings. The value of the stock-in-trade has to be taken into account while determining the gross profits under section 28 on principles of commercial accounting. The payments made for purchases would also be covered by the word "expenditure" and such payments can be disallowed if they are made in cash in the sums exceeding the amount specified under section 40A(3). We have earlier observed that rule 6DD has to be read along with section 40A(3). The rule also contemplates payments made for stock-in-trade and raw materials. This rule is in accordance with the terms of section 40A(3). The rule provides that an assessee can be exempted from the requirement of payment by crossed cheque or a crossed bank draft where purchases are made of certain agricultural or horticultural commodities or from a village where there is no banking facility. Section 40A(3) is, therefore, attracted to payments made for acquiring stock-in-trade and other materials. This is also the view taken by several High Courts. See : (1) Sajowanlal Jaiswal v. CIT 1976 (103) ITR 706 (Orissa); (2) U. P. Hardware Store v. CIT 1976 (104) ITR 664 (All) ; (3) Ratan Udyog v. ITO 1977 (109) ITR 1 (All) ; (4) P. R. Textiles v. CIT 1980 (121) ITR 237 (Ker) ; (5) CIT v. Kishan)Chand Maheshwari Dass 1980 (121) ITR 232 (P & H) ; (6) Kanti Lal Purshottam and Co. v. CIT 1985 (155) ITR 519 (Raj) ; (7) CIT v. New Light Tin Mfg. Co. 1980 (121) ITR 229 (P & H) ; (8) Fakri Auto mobiles v. CIT 1986 (160) ITR 504 (Raj) ; (9) Venkata Satya Narayana Timber Depot v. CIT 1987 (165) ITR 253 (AP) and (10) Akash Films V. CIT 1991 (190) ITR 32 (Kar) . The decisions of the High Courts of Andhra Pradesh, Orissa, Allahabad, Kerala, Karnataka, Punjab and Haryana, Rajasthan and Patna are to the effect that the payments made for purchasing stock-in-trade or raw materials should also be regarded as expenditure for the purpose of section 40A(3). The only discordant note struck on this aspect is by the Gauhati High Court in CIT v. Hardware Exchange 1991 (190) ITR 61. The Gauhati High Court has observed that section 40A(3) applies only to payments made on account of "expenditure incurred" and that the payment made for purchase of stock-in-trade cannot be termed as "expenditure incurred" since money does not go out irretrievably in such cases. | 0[ds]In our opinion, there is little merit in this contention. Section 40A(3) must not be read in isolation or to the exclusion of rule 6DD. The section must be read along with the rule. If read together, it will be clear that the provisions are not intended to restrict the business activities. There is no restriction on the assessee in his trading activities. Section 40A(3) only empowers the Assessing Officer to disallow the deduction claimed as expenditure in respect of which payment is not made by crossed cheque or crossed bank draft. The payment by crossed cheque or crossed bank draft is insisted on to enable the assessing authority to ascertain whether the payment was genuine or whether it was out of the income from undisclosed sources. The terms of section 40A(3) are not absolute. Considerations of business expediency and other relevant factors are not excluded. Genuine and bona fide transactions are not taken out of the sweep of the section. It is open to the assessee to furnish to the satisfaction of the Assessing Officer the circumstances under which the payment in the manner prescribed in section 40A(3) was not practicable or would have caused genuine difficulty to the payee. It is also open to the assessee to identify the person who has received the cash payment. Rule 6DD provides that an assessee can be exempted from the requirement of payment by a crossed cheque or crossed bank draft in the circumstances specified under the rule. It will be clear from the provisions of section 40A(3) and rule 6DD that they are intended to regulate business transactions and to prevent the use of unaccounted money or reduce the chances to use black money for business transactions. ( Mudiam Oil Company v. ITO 1973 (92) ITR 519 (AP)) . If the payment is made by a crossed cheque drawn on a bank or crossed bank draft, then it will be easier to ascertain, when deduction is claimed, whether the payment was genuine and whether it was out of the income from disclosed sources. In interpreting a taxing statute, the court cannot be oblivious of the proliferation of black money which is under circulation in our country. Any restraint intended to curb the chances and opportunities to use or create black money should not be regarded as curtailing the freedom of trade or businessAs for the second question it may be stated that the word "expenditure" has not been defined in the Act. It is a word of wide import. Section 40A(3) refers to the expenditure incurred by the assessee in respect of which payment is made. It means that all outgoings are brought under the word "expenditure" for the purpose of the section. The expenditure for purchasing stock-in-trade is one of such outgoings. The value of the stock-in-trade has to be taken into account while determining the gross profits under section 28 on principles of commercial accounting. The payments made for purchases would also be covered by the word "expenditure" and such payments can be disallowed if they are made in cash in the sums exceeding the amount specified under section 40A(3). We have earlier observed that rule 6DD has to be read along with section 40A(3). The rule also contemplates payments made for stock-in-trade and raw materials. This rule is in accordance with the terms of section 40A(3). The rule provides that an assessee can be exempted from the requirement of payment by crossed cheque or a crossed bank draft where purchases are made of certain agricultural or horticultural commodities or from a village where there is no banking facility. Section 40A(3) is, therefore, attracted to payments made for acquiring stock-in-trade and otherdecisions of the High Courts of Andhra Pradesh, Orissa, Allahabad, Kerala, Karnataka, Punjab and Haryana, Rajasthan and Patna are to the effect that the payments made for purchasing stock-in-trade or raw materials should also be regarded as expenditure for the purpose of section 40A(3). The only discordant note struck on this aspect is by the Gauhati High Court in CIT v. Hardware Exchange 1991 (190) ITR 61. The Gauhati High Court has observed that section 40A(3) applies only to payments made on account of "expenditure incurred" and that the payment made for purchase of stock-in-trade cannot be termed as "expenditure incurred" since money does not go out irretrievably in such cases. | 0 | 1,948 | 827 | ### 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:
to the payee, having regard to the nature of the transaction and the necessity for expeditious settlement thereof and also furnishes evidence to the satisfaction of the Assessing Officer as to the, genuineness of the payment and the identity of the payee." As to the validity of section 40A(3), it was urged that, if the price of the purchased material is not allowed to be adjusted against the sale price of the material sold for want of proof of payment by a crossed cheque or crossed bank draft, then the income-tax levied will not be on the income but it will be on an assumed income. It is said that the provision authorising levy of tax on an assumed income would be a restriction on the right to carry on business, besides being arbitrary In our opinion, there is little merit in this contention. Section 40A(3) must not be read in isolation or to the exclusion of rule 6DD. The section must be read along with the rule. If read together, it will be clear that the provisions are not intended to restrict the business activities. There is no restriction on the assessee in his trading activities. Section 40A(3) only empowers the Assessing Officer to disallow the deduction claimed as expenditure in respect of which payment is not made by crossed cheque or crossed bank draft. The payment by crossed cheque or crossed bank draft is insisted on to enable the assessing authority to ascertain whether the payment was genuine or whether it was out of the income from undisclosed sources. The terms of section 40A(3) are not absolute. Considerations of business expediency and other relevant factors are not excluded. Genuine and bona fide transactions are not taken out of the sweep of the section. It is open to the assessee to furnish to the satisfaction of the Assessing Officer the circumstances under which the payment in the manner prescribed in section 40A(3) was not practicable or would have caused genuine difficulty to the payee. It is also open to the assessee to identify the person who has received the cash payment. Rule 6DD provides that an assessee can be exempted from the requirement of payment by a crossed cheque or crossed bank draft in the circumstances specified under the rule. It will be clear from the provisions of section 40A(3) and rule 6DD that they are intended to regulate business transactions and to prevent the use of unaccounted money or reduce the chances to use black money for business transactions. ( Mudiam Oil Company v. ITO 1973 (92) ITR 519 (AP)) . If the payment is made by a crossed cheque drawn on a bank or crossed bank draft, then it will be easier to ascertain, when deduction is claimed, whether the payment was genuine and whether it was out of the income from disclosed sources. In interpreting a taxing statute, the court cannot be oblivious of the proliferation of black money which is under circulation in our country. Any restraint intended to curb the chances and opportunities to use or create black money should not be regarded as curtailing the freedom of trade or businessAs for the second question it may be stated that the word "expenditure" has not been defined in the Act. It is a word of wide import. Section 40A(3) refers to the expenditure incurred by the assessee in respect of which payment is made. It means that all outgoings are brought under the word "expenditure" for the purpose of the section. The expenditure for purchasing stock-in-trade is one of such outgoings. The value of the stock-in-trade has to be taken into account while determining the gross profits under section 28 on principles of commercial accounting. The payments made for purchases would also be covered by the word "expenditure" and such payments can be disallowed if they are made in cash in the sums exceeding the amount specified under section 40A(3). We have earlier observed that rule 6DD has to be read along with section 40A(3). The rule also contemplates payments made for stock-in-trade and raw materials. This rule is in accordance with the terms of section 40A(3). The rule provides that an assessee can be exempted from the requirement of payment by crossed cheque or a crossed bank draft where purchases are made of certain agricultural or horticultural commodities or from a village where there is no banking facility. Section 40A(3) is, therefore, attracted to payments made for acquiring stock-in-trade and other materials. This is also the view taken by several High Courts. See : (1) Sajowanlal Jaiswal v. CIT 1976 (103) ITR 706 (Orissa); (2) U. P. Hardware Store v. CIT 1976 (104) ITR 664 (All) ; (3) Ratan Udyog v. ITO 1977 (109) ITR 1 (All) ; (4) P. R. Textiles v. CIT 1980 (121) ITR 237 (Ker) ; (5) CIT v. Kishan)Chand Maheshwari Dass 1980 (121) ITR 232 (P & H) ; (6) Kanti Lal Purshottam and Co. v. CIT 1985 (155) ITR 519 (Raj) ; (7) CIT v. New Light Tin Mfg. Co. 1980 (121) ITR 229 (P & H) ; (8) Fakri Auto mobiles v. CIT 1986 (160) ITR 504 (Raj) ; (9) Venkata Satya Narayana Timber Depot v. CIT 1987 (165) ITR 253 (AP) and (10) Akash Films V. CIT 1991 (190) ITR 32 (Kar) . The decisions of the High Courts of Andhra Pradesh, Orissa, Allahabad, Kerala, Karnataka, Punjab and Haryana, Rajasthan and Patna are to the effect that the payments made for purchasing stock-in-trade or raw materials should also be regarded as expenditure for the purpose of section 40A(3). The only discordant note struck on this aspect is by the Gauhati High Court in CIT v. Hardware Exchange 1991 (190) ITR 61. The Gauhati High Court has observed that section 40A(3) applies only to payments made on account of "expenditure incurred" and that the payment made for purchase of stock-in-trade cannot be termed as "expenditure incurred" since money does not go out irretrievably in such cases.
### Response:
0
### Explanation:
In our opinion, there is little merit in this contention. Section 40A(3) must not be read in isolation or to the exclusion of rule 6DD. The section must be read along with the rule. If read together, it will be clear that the provisions are not intended to restrict the business activities. There is no restriction on the assessee in his trading activities. Section 40A(3) only empowers the Assessing Officer to disallow the deduction claimed as expenditure in respect of which payment is not made by crossed cheque or crossed bank draft. The payment by crossed cheque or crossed bank draft is insisted on to enable the assessing authority to ascertain whether the payment was genuine or whether it was out of the income from undisclosed sources. The terms of section 40A(3) are not absolute. Considerations of business expediency and other relevant factors are not excluded. Genuine and bona fide transactions are not taken out of the sweep of the section. It is open to the assessee to furnish to the satisfaction of the Assessing Officer the circumstances under which the payment in the manner prescribed in section 40A(3) was not practicable or would have caused genuine difficulty to the payee. It is also open to the assessee to identify the person who has received the cash payment. Rule 6DD provides that an assessee can be exempted from the requirement of payment by a crossed cheque or crossed bank draft in the circumstances specified under the rule. It will be clear from the provisions of section 40A(3) and rule 6DD that they are intended to regulate business transactions and to prevent the use of unaccounted money or reduce the chances to use black money for business transactions. ( Mudiam Oil Company v. ITO 1973 (92) ITR 519 (AP)) . If the payment is made by a crossed cheque drawn on a bank or crossed bank draft, then it will be easier to ascertain, when deduction is claimed, whether the payment was genuine and whether it was out of the income from disclosed sources. In interpreting a taxing statute, the court cannot be oblivious of the proliferation of black money which is under circulation in our country. Any restraint intended to curb the chances and opportunities to use or create black money should not be regarded as curtailing the freedom of trade or businessAs for the second question it may be stated that the word "expenditure" has not been defined in the Act. It is a word of wide import. Section 40A(3) refers to the expenditure incurred by the assessee in respect of which payment is made. It means that all outgoings are brought under the word "expenditure" for the purpose of the section. The expenditure for purchasing stock-in-trade is one of such outgoings. The value of the stock-in-trade has to be taken into account while determining the gross profits under section 28 on principles of commercial accounting. The payments made for purchases would also be covered by the word "expenditure" and such payments can be disallowed if they are made in cash in the sums exceeding the amount specified under section 40A(3). We have earlier observed that rule 6DD has to be read along with section 40A(3). The rule also contemplates payments made for stock-in-trade and raw materials. This rule is in accordance with the terms of section 40A(3). The rule provides that an assessee can be exempted from the requirement of payment by crossed cheque or a crossed bank draft where purchases are made of certain agricultural or horticultural commodities or from a village where there is no banking facility. Section 40A(3) is, therefore, attracted to payments made for acquiring stock-in-trade and otherdecisions of the High Courts of Andhra Pradesh, Orissa, Allahabad, Kerala, Karnataka, Punjab and Haryana, Rajasthan and Patna are to the effect that the payments made for purchasing stock-in-trade or raw materials should also be regarded as expenditure for the purpose of section 40A(3). The only discordant note struck on this aspect is by the Gauhati High Court in CIT v. Hardware Exchange 1991 (190) ITR 61. The Gauhati High Court has observed that section 40A(3) applies only to payments made on account of "expenditure incurred" and that the payment made for purchase of stock-in-trade cannot be termed as "expenditure incurred" since money does not go out irretrievably in such cases.
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State of Punjab and Ors Vs. Thuru Ram | Mohan M. Shantanagoudar, J.1. Leave granted.2. The judgment dated 06.05.2015 passed by the High Court of Punjab & Haryana at Chandigarh in R.F.A. No. 2435 of 1996 is called in question by the State of Punjab on the ground that the compensation ordered to be paid in respect of the fruit trees standing on the acquired land is liable to be reduced substantially.3. Land of the Respondent was acquired along with trees standing on it for construction of Hydel Channel. A notification Under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was issued on 12.01.1990 and the declaration Under Section 6 of the Act was made on 28.02.1990. The Land Acquisition Collector passed the supplementary award awarding compensation of the fruit trees standing on the acquired land on 10.03.1993. Reference Court had rejected the reference sought by the Respondent holding that the award made by the Land Acquisition Collector was proper and correct. The Respondent approached the High Court of Punjab & Haryana by filing the appeal which came to be allowed by the impugned judgment and reference was accepted awarding compensation to the tune of Rs. 5,77,377/- for the standing trees on the acquired land along with other statutory benefits as per Sections 23(1-A), 23(2) and 28 of the Act. Hence, this appeal by the State.4. Heard the parties. The counsel for Appellant taking us through the material on record submits that the judgment of the High Court is liable to be set aside inasmuch as it has not considered the evidence in proper perspective while coming to the conclusion. She has drawn our attention to certain paragraphs of the judgment of the reference court in support of the said contention. Per contra, learned advocate for the Respondent argued in support of the judgment of the High Court.5. The Respondent/the claimant relied upon Exhibit A. 1. i.e. the assessment report of AW-2 prepared by an expert, in support of his contention seeking enhancement. On the other hand, the State relied upon the opinion of another expert i.e. RW-2 (the report of RW-2 is at Exhibit Rule 1.) to contend that the Respondent is not entitled for compensation as sought in respect of the trees.6. According to Respondent, 396 fruit trees were standing on the acquired land of the Respondent. They were, orange 28, peach 76, mausami 135 and mango 157. The Land Acquisition Collector awarded total compensation of Rs. 37,321.12 including 30 percent solatium and 12 percent increase in respect of such fruit trees. As mentioned supra, the reference court on evaluating the material on record confirmed the award of the Land Acquisition Collector.7. Though, the Respondent (AW-1) claimed that the 396 fruit trees were standing, in his deposition he stated that they were 250 fruit trees which included amrood, orange and mango. Such trees were 4 to 5 years old. The expert examined by the Respondent i.e. AW-2 Sunder Singh is a retired District Agricultural Officer who served for 34 years in various capacities. According to his report total value of all the trees was Rs. 6,35,114.70. Certain other factors such as distance of land from the town etc. are also deposed by him.Per contra, the Patwari (RW-1) examined on behalf of the Appellant State has produced khasra girdawari register of the relevant village in respect of certain years. The total area of the acquired land belonging to the Respondent is 7 kanals 2 marlas (less than 1 acre). In 1985-86, wheat and other crops were shown to have sown in the land. However, subsequently orchard (Bagicha) has been added with different ink in the crops column and according to him such entry was made, i.e. adding the word Bagicha, without any order from the competent authority. No initials were also found. According to RW-2, Horticulture Development Officer the acquired trees of the Respondent were found to be of D category. He has given the value of every kind of standing fruit trees. The valuation of RW-2 is far less than the valuation provided by AW-2.8. The expert examined by the Respondent (AW-2) has admitted that there was a tank for storing water and buckets were lying. Meaning thereby the Respondent was allegedly watering the fruit trees by pouring water with the help of buckets. There was no perennial source of water. In that regard the reference court concluded that the irrigation facility was scanty. AW-2 has further deposed that there could be 90 fruit trees in one killa (equal to one acre). If, only 90 fruits trees can be planted in one killa (one acre), we are at a loss to understand as to how there could be 250 trees or 396 trees in 7 kanals and 2 marlas of land (less than one acre) that too of B category as is sought to be contended by the Respondent. | 1[ds]As mentioned supra, the reference court on evaluating the material on record confirmed the award of the Land Acquisition Collector7. Though, the Respondent (AW-1) claimed that the 396 fruit trees were standing, in his deposition he stated that they were 250 fruit trees which included amrood, orange and mango. Such trees were 4 to 5 years old. The expert examined by the Respondent i.e. AW-2 Sunder Singh is a retired District Agricultural Officer who served for 34 years in various capacities. According to his report total value of all the trees was Rs. 6,35,114.70. Certain other factors such as distance of land from the town etc. are also deposed by himPer contra, the Patwari (RW-1) examined on behalf of the Appellant State has produced khasra girdawari register of the relevant village in respect of certain years. The total area of the acquired land belonging to the Respondent is 7 kanals 2 marlas (less than 1 acre). In 1985-86, wheat and other crops were shown to have sown in the land. However, subsequently orchard (Bagicha) has been added with different ink in the crops column and according to him such entry was made, i.e. adding the word Bagicha, without any order from the competent authority. No initials were also found. According to RW-2, Horticulture Development Officer the acquired trees of the Respondent were found to be of D category. He has given the value of every kind of standing fruit trees. The valuation of RW-2 is far less than the valuation provided by AW-28. The expert examined by the Respondent (AW-2) has admitted that there was a tank for storing water and buckets were lying. Meaning thereby the Respondent was allegedly watering the fruit trees by pouring water with the help of buckets. There was no perennial source of water. In that regard the reference court concluded that the irrigation facility was scanty. AW-2 has further deposed that there could be 90 fruit trees in one killa (equal to one acre). If, only 90 fruits trees can be planted in one killa (one acre), we are at a loss to understand as to how there could be 250 trees or 396 trees in 7 kanals and 2 marlas of land (less than one acre) that too of B category as is sought to be contended by the Respondent. | 1 | 906 | 442 | ### 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:
Mohan M. Shantanagoudar, J.1. Leave granted.2. The judgment dated 06.05.2015 passed by the High Court of Punjab & Haryana at Chandigarh in R.F.A. No. 2435 of 1996 is called in question by the State of Punjab on the ground that the compensation ordered to be paid in respect of the fruit trees standing on the acquired land is liable to be reduced substantially.3. Land of the Respondent was acquired along with trees standing on it for construction of Hydel Channel. A notification Under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was issued on 12.01.1990 and the declaration Under Section 6 of the Act was made on 28.02.1990. The Land Acquisition Collector passed the supplementary award awarding compensation of the fruit trees standing on the acquired land on 10.03.1993. Reference Court had rejected the reference sought by the Respondent holding that the award made by the Land Acquisition Collector was proper and correct. The Respondent approached the High Court of Punjab & Haryana by filing the appeal which came to be allowed by the impugned judgment and reference was accepted awarding compensation to the tune of Rs. 5,77,377/- for the standing trees on the acquired land along with other statutory benefits as per Sections 23(1-A), 23(2) and 28 of the Act. Hence, this appeal by the State.4. Heard the parties. The counsel for Appellant taking us through the material on record submits that the judgment of the High Court is liable to be set aside inasmuch as it has not considered the evidence in proper perspective while coming to the conclusion. She has drawn our attention to certain paragraphs of the judgment of the reference court in support of the said contention. Per contra, learned advocate for the Respondent argued in support of the judgment of the High Court.5. The Respondent/the claimant relied upon Exhibit A. 1. i.e. the assessment report of AW-2 prepared by an expert, in support of his contention seeking enhancement. On the other hand, the State relied upon the opinion of another expert i.e. RW-2 (the report of RW-2 is at Exhibit Rule 1.) to contend that the Respondent is not entitled for compensation as sought in respect of the trees.6. According to Respondent, 396 fruit trees were standing on the acquired land of the Respondent. They were, orange 28, peach 76, mausami 135 and mango 157. The Land Acquisition Collector awarded total compensation of Rs. 37,321.12 including 30 percent solatium and 12 percent increase in respect of such fruit trees. As mentioned supra, the reference court on evaluating the material on record confirmed the award of the Land Acquisition Collector.7. Though, the Respondent (AW-1) claimed that the 396 fruit trees were standing, in his deposition he stated that they were 250 fruit trees which included amrood, orange and mango. Such trees were 4 to 5 years old. The expert examined by the Respondent i.e. AW-2 Sunder Singh is a retired District Agricultural Officer who served for 34 years in various capacities. According to his report total value of all the trees was Rs. 6,35,114.70. Certain other factors such as distance of land from the town etc. are also deposed by him.Per contra, the Patwari (RW-1) examined on behalf of the Appellant State has produced khasra girdawari register of the relevant village in respect of certain years. The total area of the acquired land belonging to the Respondent is 7 kanals 2 marlas (less than 1 acre). In 1985-86, wheat and other crops were shown to have sown in the land. However, subsequently orchard (Bagicha) has been added with different ink in the crops column and according to him such entry was made, i.e. adding the word Bagicha, without any order from the competent authority. No initials were also found. According to RW-2, Horticulture Development Officer the acquired trees of the Respondent were found to be of D category. He has given the value of every kind of standing fruit trees. The valuation of RW-2 is far less than the valuation provided by AW-2.8. The expert examined by the Respondent (AW-2) has admitted that there was a tank for storing water and buckets were lying. Meaning thereby the Respondent was allegedly watering the fruit trees by pouring water with the help of buckets. There was no perennial source of water. In that regard the reference court concluded that the irrigation facility was scanty. AW-2 has further deposed that there could be 90 fruit trees in one killa (equal to one acre). If, only 90 fruits trees can be planted in one killa (one acre), we are at a loss to understand as to how there could be 250 trees or 396 trees in 7 kanals and 2 marlas of land (less than one acre) that too of B category as is sought to be contended by the Respondent.
### Response:
1
### Explanation:
As mentioned supra, the reference court on evaluating the material on record confirmed the award of the Land Acquisition Collector7. Though, the Respondent (AW-1) claimed that the 396 fruit trees were standing, in his deposition he stated that they were 250 fruit trees which included amrood, orange and mango. Such trees were 4 to 5 years old. The expert examined by the Respondent i.e. AW-2 Sunder Singh is a retired District Agricultural Officer who served for 34 years in various capacities. According to his report total value of all the trees was Rs. 6,35,114.70. Certain other factors such as distance of land from the town etc. are also deposed by himPer contra, the Patwari (RW-1) examined on behalf of the Appellant State has produced khasra girdawari register of the relevant village in respect of certain years. The total area of the acquired land belonging to the Respondent is 7 kanals 2 marlas (less than 1 acre). In 1985-86, wheat and other crops were shown to have sown in the land. However, subsequently orchard (Bagicha) has been added with different ink in the crops column and according to him such entry was made, i.e. adding the word Bagicha, without any order from the competent authority. No initials were also found. According to RW-2, Horticulture Development Officer the acquired trees of the Respondent were found to be of D category. He has given the value of every kind of standing fruit trees. The valuation of RW-2 is far less than the valuation provided by AW-28. The expert examined by the Respondent (AW-2) has admitted that there was a tank for storing water and buckets were lying. Meaning thereby the Respondent was allegedly watering the fruit trees by pouring water with the help of buckets. There was no perennial source of water. In that regard the reference court concluded that the irrigation facility was scanty. AW-2 has further deposed that there could be 90 fruit trees in one killa (equal to one acre). If, only 90 fruits trees can be planted in one killa (one acre), we are at a loss to understand as to how there could be 250 trees or 396 trees in 7 kanals and 2 marlas of land (less than one acre) that too of B category as is sought to be contended by the Respondent.
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Som Lal Vs. Vijay Laxmi & Others | existence of two provisions may by itself, and without more, lead to an inference of mutual irreconcilability if the later set of provisions is by itself a complete code with respect to the same matter. In such a case the actual detailed comparison of the two sets of provisions may not be necessary. It is a matter of legislative intent that the two sets of provisions were not expected to be applied simultaneously. 9. In Hyderabad Chemical and Pharmaceutical Works Ltd. etc. v. State of Andhra Pradesh & Ors. ([1964] 7 S.C.R. 376), it was held as follows: By virtue of Entry 84 List I of the VII Schedule to the Constitution no charge could be levied on the manufacture of medicinal preparations except by the Union of India and since the 1955 Act is a law made otherwise by Parliament within the meaning of Art. 277 the duties and other charges which used to be levied by the State in connection with medicinal preparations could no longer be levied by it. Further the effect of s.21 of the Act is that so far as the Hyderabad Act applied to the use of alcohol in the manufacture of medicinal and toilet preparations, the Hyderabad Act must be deemed to have been repealed. Therefore, it clearly transpires that by virtue of subsequent amendment of the law made by the Parliament, the Hyderabad Act automatically stood repealed. Similar is the position here also that the subsequent Act 19 of 1994 which has come at later point of time, repeals the provisions of the Act 9 of 1994 so far as it is inconsistent with the Act 19 of 1994. 10. As against this, learned senior counsel for the respondents, invited our attention to a decision of this Court in Municipal Corporation of Delhi v. Shiv Shankar [ 1971 (1) SCC 442 ] wherein it has been held as follows: As the Legislature must be presumed in deference of the rule of law to intend to enact consistent and harmonious body of laws, a subsequent legislation may not be too readily presumed to effectuate a repeal of existing statutory laws in the absence of express or at least clear and unambiguous indication to that effect. But in the present case, the intention of the Legislature is more than apparent that the existing legislation as subsequently held under Section 142 of the Act 19 of 1994 that this Act will have over-riding effect on all other laws in the State and likewise, under Section 143 there is repeal. Therefore, there is no question of ambiguity in the matter of intention of the legislature as it is very clear. 11. In Kishorebhai Khamanchand Goyal v. State of Gujarat & Anr.[ (2003) 12 SCC 274 ] their Lordships held as follows: There is a presumption against repeal by implication. The reason is that the legislature while enacting a law is presumed to have complete knowledge of the existing laws on the same subject-matter, and therefore, when it does not provide a repealing provision the intention is clear not to repeal the existing legislation. Besides when the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle of expressio unius (personae vel rei) est exclusion alterius.( The express intention of one person or thing is the exclusion of another.) The continuance of existing legislation, in the absence of an express provision of repeal being presumed, the burden to show that there has been repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act that the two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred. The necessary questions to be asked are: (1) Whether there is direct conflict between the two provisions. (2) Whether the legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law. (3) Whether the two laws occupy the same field. As already mentioned there is no necessary implication. In this case, the intention of the legislature is more than apparent. 12. Learned counsel for the appellant has tried to submit that in fact the incumbent was virtually not holding the office of profit as he ceased to be an employee for the last 8-9 years. We do not want to go into this controversy as we have already decided the question of law involved in the present case that a salaried employee of any local authority, statutory corporation or Board or a Co-operative Society can not be held to have held the office of profit under Section 11 of the Act 19 of 1994. Therefore, we need not to go into the factual controversy. Mr. P.S.Patwalia, learned senior counsel for the respondents tried to persuade us that we should look to the scope of both the Acts. The disqualifications are only mentioned in Section 208 of the Act 9 of 1994 and the intention of the legislature is very clear and Section 11 of the Act of 1994 being in later point of time stating therein what are the disqualifications, therefore, the disqualifications mentioned in Section 11 of the Act 19 of 1994 will prevail and not the disqualifications mentioned in Section 208 of Act 9 of 1994. The disqualifications mentioned in Section 208 which are consistent with Section 11 of Act 19 of 1994 can only survive and not other disqualifications. 13. As a result of our above discussions, we are opinion that the view taken by the learned Single Judge on the basis of the judgment of the Division Bench of the High Court of Punjab and Haryana cannot be sustained. Consequently, we | 1[ds]Both the Acts i.e. Act 9 of 1994 and Act 19 of 1994 came into being in view of seventy-third amendment and seventy-fourth amendment of the Constitution of India to provide more teeth to local self government. By this amendment under Part IX of the Constitution, Article 243 was amended. Likewise by inserting Part IXA, Municipalities were also strengthened. Self-governance were given to the local bodies. As a result of these seventy-third and seventy-fourth amendments, The Punjab Panchayati Raj Act, 1994(Punjab Act 9 of 1994) and the Punjab State Election Commission Act, 1994 (Punjab Act No. 19 of 1994) were enacted. The preamble of The Punjab Panchayati Raj Act,1994 ( Punjab Act 9 of 1994) reads as under :Likewise the Punjab State Election Commission Act, 1994 was enacted and the preamble reads as under:An Act to provide for the constitution of the State Election Commission and for vesting the superintendence, direction and control of the preparation of election rolls for, and the conduct of all elections to the Panchayats and Municipalities in the State of Punjab, in the State Election Commission, and to provide for all matters relating to, or ancillary or in connection with the elections to the Panchayats and Municipalities, in terms of the provisions of Parts IX and IX-A of the Constitution of IndiaThis is also a fact that the Act 9 of 1994 came into effect on 21.4.1994 and the Act 19 of 1994 came into effect on 19.9.1994. Act 19 of 1994 is definitely later in point of time and here under Section 11 (f) & (g) the disqualifications have been prescribed. Though similar disqualifications existed under Section 208 of the Act of 9 of 1994 but subsequently the legislature in its wisdom has reduced the disqualifications and confined only to the area that one should not hold office of profit under a Panchayat or a Municipality or under the Government of India or any State Government. Thus, the legislature in its wisdom has not considered it proper to continue with the disqualification of being an employee of any local authority, Statutory Corporation or Board or a Co-operative Society. Had that been the intention of the legislature then perhaps they would have specifically provided the disqualifications under Section 11 of the Act 19 of 1994. Section 11 clearly says that a person shall be disqualified for being chosen as, and for being a member of a Panchayat or a Municipality if he holds an office of profit under a Panchayat or a Municipality; or if he holds an office of profit under the Government of India or any State Government; whereas Section 208 (g) says a person shall be disqualified for being chosen as, and for being a member of a Panchayat or a Municipality if he is a whole-time salaried employee of any local authority, Statutory Corporation or Board or a Co-operative Society registered under the Punjab Co-operative Societies Act, 1961, or of the State Government or the Central Government. But in the subsequent Act 19 of 1994 the area of disqualification has been narrowed down. Since the Act 19 of 1994 is subsequent in point of time and it also has the provisions of Sections 142 and 143 which clearly contemplate that it shall have the complete over-riding effect, reading of Section 142 makes it clear that the legislature were aware of the earlier disqualification and subsequently they have inserted the disqualifications under sub-sections (f) & (g) of Section 11 so far as the office of profit is concerned and provided over-riding effect and have clearly laid down that notwithstanding anything inconsistent therewith contained in any other law for the time being in force relating to the conduct of elections to the Panchayats or Municipalities or any incidental matter thereto shall stand repealed. Therefore, the mandate of the legislature appears on the face of it very clear and they have saved the actions under Section 143 to the extent that any other law which is inconsistent with this law shall stand repealed and only that action taken under the corresponding provisions of any State law which were in force at that time, those actions shall only be saved and not otherwise. Therefore, the saving clause is very limited if any action has been taken under the earlier legislation before coming into force of Act 19 of 1994, those actions would be saved after the coming into force of Act 19 of 1994. The mandate of legislature is categorically clear in view of Sections 142 and 143 and it admits of no two opinion in the matter. The courts should be very slow to interfere with the mandates of the legislature unless there are compelling reasons for doing so. In the present case, the clear mandate of the legislature was that anything which is inconsistent with the Act 19 of 1994 shall be deemed to have been repealed leaves no room for us to take a contrary view of the matter. With respect we cannot agree with the view taken by the Division Bench of the High Court that both the provisions can be read harmoniously i.e. Section 11 of Act 19 of 1994 read with Section 208 of Act 9 of 1994 but we regret it cannot be. Harmonious reading of both the provisions will be limited to the extent of Section 11 of the Act 19 of 1994. When Section 11 of Act 19 of 1994 clearly contemplates that these are the only disqualifications mentioned in sub-sections (f) & (g), which are already present in Section 208 of Act 9 of 1994, beyond that it cannot be read. If Section 208 of Act 9 of 1994 lays down further disqualifications then those disqualifications will run counter to the disqualifications as mentioned in Section 11 of Act 19 of 1994. If Section 208 of Act 9 of 1994 is inconsistent to the extent of Section 11 of Act 19 of 1994, then to this extent the provisions of Section 208 of Act 9 of 1994 cannot be read. Since there are only four disqualifications mentioned in Section 11 of Act 19 of 1994, the rest of the disqualifications cannot be imported by implication of the Act 9 of 1994. Mr. Patwalia, learned senior counsel for the respondents tried to persuade us that the theory of not expressly repealed by implication should be read into but we regret, it cannot be. The intention of the legislature is clear and there is no reason why the intention of the legislature be not given effect to. In fact the Division Bench of the Punjab & Haryana High Court held that Section 11 should be read with Section 208; that means Section 208 can survive to the extent that it is consistent with Section 11 of Act 19 of 1994. Rest part of section 208 i.e. a person who is holding office of profit under local authority, Statutory Corporation, Board or Co-operative Society will not be disqualified. Therefore, if a person holds an office of profit under the local authority, Statutory Corporation or Board or a Co-operative Society cannot by implication be said to be a person disqualified under the Act. These provisions can be read harmoniously to the extent that if a person is holding office under the Panchayat or a Municipality, or under the Government of India or any State Government, to that extent it will be deemed to be office of profit. If he holds an office of profit under any other organization, like local authority, Statutory Corporation or Board or a Co-operative Society, that will not be office of profit so as to disqualify him to be chosen as and for being a member of a Panchayat7. Mr.Patwalia, learned senior counsel for the respondents invited our attention to Chapter VII at pg.637 of the Principles of Statutory Interpretation (11th Edn.2008) by Justice G.P.Singh, which reads as under :he use of any particular form of words is not necessary to bring about an express repeal. All that is necessary is that the words used show an intention to abrogate the Act or provision in question. The usual form is to use the words is or are hereby repealed and to mention the Acts sought to be repealed in the repealing section or to catalogue them in a Schedule. The use of words shall cease to have effect, is also not uncommon. When the object is to repeal only a portion of an Act words shall be omitted are normally used. The legislative practice in India shows that omission of a provision is treated as amendment which signifies deletion of that provision and is not different from repeal. It has been held that there is no real distinction between repeal and an amendment. It has also been held that where a provision of an Act is omitted by an Act and the said Act simultaneously re-enacts a new provision which substantially covers the field occupied by the repealed provision with certain modification, in that event such re-enactment is regarded having force continuously and the modification or changes are treated as amendment coming into force with effect from the date of enforcement of re-enacted provisionSimilarly, our attention was invited to a paragraph at page 639. There it has been observed as follows:he Legislature sometimes does not enumerate the Acts sought to be repealed, and only says thatall provisions inconsistent with this Act are hereby repealed. With respect to such a repealing provision, it has been said that it merely substitutes for the uncertainty of the general law an express provision of equal uncertainty; and in determining whether a particular earlier provision is repealed by such a repealing provision on the ground of inconsistency with it, the same provisions which are application in determining a question of implied repeal have to be appliedAt page 640, under the heading Implied repeal it has been observed as follows:re is a presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject-matter, and therefore, when it does not provide a repealing provision, it gives out an intention not to repeal the existing legislation. When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle expressio unius est exclusion alterius. Further, the presumption will be comparatively strong in case of virtually contemporaneous Acts. The continuance of existing legislation, in the absence of an express provision of repeal, being presumed, the burden to show that there has been a repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Actthat the two cannot stand togetherAs already mentioned above it is very clear that Section 142 clearly contemplates that the earlier laws which are inconsistent with the Act shall stand repealed and it is saved to the limited extent as provided under Section 143. Therefore, if both the provisions i.e. Section 208 of Act 9 of 1994 and Section 11 of Act 19 of 1994 can be read harmoniously to show that the disqualifications which are mentioned for holding office of profit are that an incumbent should not be an employee or a salaried person under the Panchayat, or under Municipality, or under the State Government; or the Central Government. To this extent there is identity between the two provisions and no other disqualifications have been saved and it has been subsequently repealed and it is more than apparent from Sections 142 and 143 of the Act 19 of 19948. In Ratan Lal Adukia v. Union of India [(1989) 3 SCC 537] it has been held as follows:he doctrine of implied repeal is based on the postulate that the legislature which is presumed to know the existing state of the law did not intend to create any confusion by retaining conflicting provisions. Courts in applying this doctrine are supposed merely to give effect to the legislative intent by examining the object and scope of the two enactments. But in a conceivable case, the very existence of two provisions may by itself, and without more, lead to an inference of mutual irreconcilability if the later set of provisions is by itself a complete code with respect to the same matter. In such a case the actual detailed comparison of the two sets of provisions may not be necessary. It is a matter of legislative intent that the two sets of provisions were not expected to be applied simultaneously9. In Hyderabad Chemical and Pharmaceutical Works Ltd. etc. v. State of Andhra Pradesh & Ors. ([1964] 7 S.C.R. 376), it was held as follows:By virtue of Entry 84 List I of the VII Schedule to the Constitution no charge could be levied on the manufacture of medicinal preparations except by the Union of India and since the 1955 Act is a law made otherwise by Parliament within the meaning of Art. 277 the duties and other charges which used to be levied by the State in connection with medicinal preparations could no longer be levied by it. Further the effect of s.21 of the Act is that so far as the Hyderabad Act applied to the use of alcohol in the manufacture of medicinal and toilet preparations, the Hyderabad Act must be deemed to have been repealedTherefore, it clearly transpires that by virtue of subsequent amendment of the law made by the Parliament, the Hyderabad Act automatically stood repealed. Similar is the position here also that the subsequent Act 19 of 1994 which has come at later point of time, repeals the provisions of the Act 9 of 1994 so far as it is inconsistent with the Act 19 of 199410. As against this, learned senior counsel for the respondents, invited our attention to a decision of this Court in Municipal Corporation of Delhi v. Shiv Shankar [ 1971 (1) SCC 442 ] wherein it has been held as follows:As the Legislature must be presumed in deference of the rule of law to intend to enact consistent and harmonious body of laws, a subsequent legislation may not be too readily presumed to effectuate a repeal of existing statutory laws in the absence of express or at least clear and unambiguous indication to that effectBut in the present case, the intention of the Legislature is more than apparent that the existing legislation as subsequently held under Section 142 of the Act 19 of 1994 that this Act will have over-riding effect on all other laws in the State and likewise, under Section 143 there is repeal. Therefore, there is no question of ambiguity in the matter of intention of the legislature as it is very clear11. In Kishorebhai Khamanchand Goyal v. State of Gujarat & Anr.[ (2003) 12 SCC 274 ] their Lordships held as follows:re is a presumption against repeal by implication. The reason is that the legislature while enacting a law is presumed to have complete knowledge of the existing laws on the same subject-matter, and therefore, when it does not provide a repealing provision the intention is clear not to repeal the existing legislation. Besides when the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle of expressio unius (personae vel rei) est exclusion alterius.( The express intention of one person or thing is the exclusion of another.) The continuance of existing legislation, in the absence of an express provision of repeal being presumed, the burden to show that there has been repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Actthat the two cannot stand. But, if the two can be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred. The necessary questions to be asked are:(1) Whether there is direct conflict between the two provisions(2) Whether the legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law(3) Whether the two laws occupy the same fieldAs already mentioned there is no necessary implication. In this case, the intention of the legislature is more than apparent12. Learned counsel for the appellant has tried to submit that in fact the incumbent was virtually not holding the office of profit as he ceased to be an employee for the last 8-9 years. We do not want to go into this controversy as we have already decided the question of law involved in the present case that a salaried employee of any local authority, statutory corporation or Board or a Co-operative Society can not be held to have held the office of profit under Section 11 of the Act 19 of 1994. Therefore, we need not to go into the factual controversy. Mr. P.S.Patwalia, learned senior counsel for the respondents tried to persuade us that we should look to the scope of both the Acts. The disqualifications are only mentioned in Section 208 of the Act 9 of 1994 and the intention of the legislature is very clear and Section 11 of the Act of 1994 being in later point of time stating therein what are the disqualifications, therefore, the disqualifications mentioned in Section 11 of the Act 19 of 1994 will prevail and not the disqualifications mentioned in Section 208 of Act 9 of 1994. The disqualifications mentioned in Section 208 which are consistent with Section 11 of Act 19 of 1994 can only survive and not other disqualifications13. As a result of our above discussions, we are opinion that the view taken by the learned Single Judge on the basis of the judgment of the Division Bench of the High Court of Punjab and Haryana cannot be sustained. | 1 | 5,836 | 3,298 | ### 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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existence of two provisions may by itself, and without more, lead to an inference of mutual irreconcilability if the later set of provisions is by itself a complete code with respect to the same matter. In such a case the actual detailed comparison of the two sets of provisions may not be necessary. It is a matter of legislative intent that the two sets of provisions were not expected to be applied simultaneously. 9. In Hyderabad Chemical and Pharmaceutical Works Ltd. etc. v. State of Andhra Pradesh & Ors. ([1964] 7 S.C.R. 376), it was held as follows: By virtue of Entry 84 List I of the VII Schedule to the Constitution no charge could be levied on the manufacture of medicinal preparations except by the Union of India and since the 1955 Act is a law made otherwise by Parliament within the meaning of Art. 277 the duties and other charges which used to be levied by the State in connection with medicinal preparations could no longer be levied by it. Further the effect of s.21 of the Act is that so far as the Hyderabad Act applied to the use of alcohol in the manufacture of medicinal and toilet preparations, the Hyderabad Act must be deemed to have been repealed. Therefore, it clearly transpires that by virtue of subsequent amendment of the law made by the Parliament, the Hyderabad Act automatically stood repealed. Similar is the position here also that the subsequent Act 19 of 1994 which has come at later point of time, repeals the provisions of the Act 9 of 1994 so far as it is inconsistent with the Act 19 of 1994. 10. As against this, learned senior counsel for the respondents, invited our attention to a decision of this Court in Municipal Corporation of Delhi v. Shiv Shankar [ 1971 (1) SCC 442 ] wherein it has been held as follows: As the Legislature must be presumed in deference of the rule of law to intend to enact consistent and harmonious body of laws, a subsequent legislation may not be too readily presumed to effectuate a repeal of existing statutory laws in the absence of express or at least clear and unambiguous indication to that effect. But in the present case, the intention of the Legislature is more than apparent that the existing legislation as subsequently held under Section 142 of the Act 19 of 1994 that this Act will have over-riding effect on all other laws in the State and likewise, under Section 143 there is repeal. Therefore, there is no question of ambiguity in the matter of intention of the legislature as it is very clear. 11. In Kishorebhai Khamanchand Goyal v. State of Gujarat & Anr.[ (2003) 12 SCC 274 ] their Lordships held as follows: There is a presumption against repeal by implication. The reason is that the legislature while enacting a law is presumed to have complete knowledge of the existing laws on the same subject-matter, and therefore, when it does not provide a repealing provision the intention is clear not to repeal the existing legislation. Besides when the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle of expressio unius (personae vel rei) est exclusion alterius.( The express intention of one person or thing is the exclusion of another.) The continuance of existing legislation, in the absence of an express provision of repeal being presumed, the burden to show that there has been repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act that the two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred. The necessary questions to be asked are: (1) Whether there is direct conflict between the two provisions. (2) Whether the legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law. (3) Whether the two laws occupy the same field. As already mentioned there is no necessary implication. In this case, the intention of the legislature is more than apparent. 12. Learned counsel for the appellant has tried to submit that in fact the incumbent was virtually not holding the office of profit as he ceased to be an employee for the last 8-9 years. We do not want to go into this controversy as we have already decided the question of law involved in the present case that a salaried employee of any local authority, statutory corporation or Board or a Co-operative Society can not be held to have held the office of profit under Section 11 of the Act 19 of 1994. Therefore, we need not to go into the factual controversy. Mr. P.S.Patwalia, learned senior counsel for the respondents tried to persuade us that we should look to the scope of both the Acts. The disqualifications are only mentioned in Section 208 of the Act 9 of 1994 and the intention of the legislature is very clear and Section 11 of the Act of 1994 being in later point of time stating therein what are the disqualifications, therefore, the disqualifications mentioned in Section 11 of the Act 19 of 1994 will prevail and not the disqualifications mentioned in Section 208 of Act 9 of 1994. The disqualifications mentioned in Section 208 which are consistent with Section 11 of Act 19 of 1994 can only survive and not other disqualifications. 13. As a result of our above discussions, we are opinion that the view taken by the learned Single Judge on the basis of the judgment of the Division Bench of the High Court of Punjab and Haryana cannot be sustained. Consequently, we
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intent by examining the object and scope of the two enactments. But in a conceivable case, the very existence of two provisions may by itself, and without more, lead to an inference of mutual irreconcilability if the later set of provisions is by itself a complete code with respect to the same matter. In such a case the actual detailed comparison of the two sets of provisions may not be necessary. It is a matter of legislative intent that the two sets of provisions were not expected to be applied simultaneously9. In Hyderabad Chemical and Pharmaceutical Works Ltd. etc. v. State of Andhra Pradesh & Ors. ([1964] 7 S.C.R. 376), it was held as follows:By virtue of Entry 84 List I of the VII Schedule to the Constitution no charge could be levied on the manufacture of medicinal preparations except by the Union of India and since the 1955 Act is a law made otherwise by Parliament within the meaning of Art. 277 the duties and other charges which used to be levied by the State in connection with medicinal preparations could no longer be levied by it. Further the effect of s.21 of the Act is that so far as the Hyderabad Act applied to the use of alcohol in the manufacture of medicinal and toilet preparations, the Hyderabad Act must be deemed to have been repealedTherefore, it clearly transpires that by virtue of subsequent amendment of the law made by the Parliament, the Hyderabad Act automatically stood repealed. Similar is the position here also that the subsequent Act 19 of 1994 which has come at later point of time, repeals the provisions of the Act 9 of 1994 so far as it is inconsistent with the Act 19 of 199410. As against this, learned senior counsel for the respondents, invited our attention to a decision of this Court in Municipal Corporation of Delhi v. Shiv Shankar [ 1971 (1) SCC 442 ] wherein it has been held as follows:As the Legislature must be presumed in deference of the rule of law to intend to enact consistent and harmonious body of laws, a subsequent legislation may not be too readily presumed to effectuate a repeal of existing statutory laws in the absence of express or at least clear and unambiguous indication to that effectBut in the present case, the intention of the Legislature is more than apparent that the existing legislation as subsequently held under Section 142 of the Act 19 of 1994 that this Act will have over-riding effect on all other laws in the State and likewise, under Section 143 there is repeal. Therefore, there is no question of ambiguity in the matter of intention of the legislature as it is very clear11. In Kishorebhai Khamanchand Goyal v. State of Gujarat & Anr.[ (2003) 12 SCC 274 ] their Lordships held as follows:re is a presumption against repeal by implication. The reason is that the legislature while enacting a law is presumed to have complete knowledge of the existing laws on the same subject-matter, and therefore, when it does not provide a repealing provision the intention is clear not to repeal the existing legislation. Besides when the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle of expressio unius (personae vel rei) est exclusion alterius.( The express intention of one person or thing is the exclusion of another.) The continuance of existing legislation, in the absence of an express provision of repeal being presumed, the burden to show that there has been repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Actthat the two cannot stand. But, if the two can be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred. The necessary questions to be asked are:(1) Whether there is direct conflict between the two provisions(2) Whether the legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law(3) Whether the two laws occupy the same fieldAs already mentioned there is no necessary implication. In this case, the intention of the legislature is more than apparent12. Learned counsel for the appellant has tried to submit that in fact the incumbent was virtually not holding the office of profit as he ceased to be an employee for the last 8-9 years. We do not want to go into this controversy as we have already decided the question of law involved in the present case that a salaried employee of any local authority, statutory corporation or Board or a Co-operative Society can not be held to have held the office of profit under Section 11 of the Act 19 of 1994. Therefore, we need not to go into the factual controversy. Mr. P.S.Patwalia, learned senior counsel for the respondents tried to persuade us that we should look to the scope of both the Acts. The disqualifications are only mentioned in Section 208 of the Act 9 of 1994 and the intention of the legislature is very clear and Section 11 of the Act of 1994 being in later point of time stating therein what are the disqualifications, therefore, the disqualifications mentioned in Section 11 of the Act 19 of 1994 will prevail and not the disqualifications mentioned in Section 208 of Act 9 of 1994. The disqualifications mentioned in Section 208 which are consistent with Section 11 of Act 19 of 1994 can only survive and not other disqualifications13. As a result of our above discussions, we are opinion that the view taken by the learned Single Judge on the basis of the judgment of the Division Bench of the High Court of Punjab and Haryana cannot be sustained.
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Bata Shoe Co Vs. City Of Jabalpur Corporation | double duty if dutiable articles are imported (a) without paying the duty or (b) without giving declaration to the Octroi Moharrir. It may be that neither of these two eventualities occurred and therefore there was no justification for imposing double duty. But the error could be corrected only in the manner provided in the Act and by the authority prescribed therein. The remedy by way of a suit is barred.23. Plaintiffs sought support to their contention as regards the maintainability of the suit for refund of double duty and revised duty, from certain observations contained in Firm Seth Radha Kishan v. Administrator, Municipal Committee, Ludhiana ([1964] 2 SCR 273 , 284 : AIR 1963 SC 1547 : [1963] 50 ITR 187 ) to the effect that "a suit in a civil court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions". In the first place, the assessment in the instant case was made by the authority duly empowered to do so and secondly, the authority was acting under the Act while revising the assessment and imposing double duty. It had the power to assess and levy double duty. If it exceeded that power it acted wrongly, not without jurisdiction. In Firm Seth Radha Kishan, the Municipal Committee being entitled to impose a certain rate of tax on common salt and higher rate in respect of salt of other kinds, imposed tax at the higher rate on "sambhar salt" which was a variety of common salt. Section 86 of the Punjab Municipal Act, 1911, provided that the liability of any person to be taxed cannot be questioned in any manner or by any authority other than that provided in the Act. That provision is identical with Section 84(3) of the C. P. Municipalities Act, 1922, with which we are concerned in the instant case. Section 86(2) of the Punjab Act provided that no refund of any tax shall be claimed by any person otherwise than in accordance with the provisions of the Act and the Rules thereunder. It was held by this Court that the liability to pay terminal tax was created by the Act and since a remedy was given to the party aggrieved in the enforcement of that liability, the suit for refund was not maintainable by reason of Section 86. The observations on which plaintiffs rely cannot, in the context, be taken to mean that the Act protects correct assessments only and that every incorrect or wrong order of assessment can be challenged by a suit though the statute gives it finality and provides full and effective remedies to challenge it. Except in matters of constitutionality and the like, a self-contained Code must have priority over the common means of vindicating rights. We would like to add that if the observations on which plaintiffs rely are to be understood literally, they are contrary to the decision in Kamla Mills case where, speaking for a seven-Judge Bench, Gajendragadkar, C. J., observed that if the appropriate authority while exercising its jurisdiction and powers under the relevant provisions of the Act comes to an erroneous conclusion, it cannot be said that the decision is without jurisdiction (p. 78).24. Plaintiffs reliance on the 1st proposition in Dhulabhais case is equally misconceived. The first two propositions formulated in that case contain a dichotomy. The 1st proposition refers to cases where the statute merely gives finality to orders of special tribunals. In such cases, according to that proposition, the civil courts jurisdiction would not be excluded if "the provisions of the particular Act are not complied with". The instant case does not fall under the 1st proposition because Section 84(3) of the Act does not merely give finality to the orders passed by the special tribunals. It provides, expressly, that such orders shall not be questioned in any other manner or by any other authority than is provided in the Act. The 2nd proposition deals in its first paragraph with cases where there is an express bar to the civil courts jurisdiction. The second paragraph of that proposition deals with cases where there is no express exclusion. The instant case falls under either one or the other paragraph of this proposition, which rendered it necessary to examine whether the Act creates special rights and liabilities, provides for their determination by laying down that such rights and liabilities shall be determined by the special tribunals constituted under it and whether remedies normally associated with actions in civil courts are prescribed by the Act. Upon that examination we concluded that the suit is barred from the cognizance of the civil court.25. Not only that the Act of 1922 provides an effective remedy to an aggrieved party to challenge the assessment of octroi duty and to claim refund of duty illegally paid or recovered, but the plaintiffs in fact availed themselves of those remedies. In 1946-47 when the Municipal Committee re-opened and revised the past assessments by charging octroi duty on an amount which was only 6 1/4% less than the retail price of the goods and when it levied double duty by way of penalty, plaintiffs preferred an appeal against the decision of the Municipal Committee to the Sub-Divisional Officer, Jabalpur, who by an order dated July 14, 1948 modified the decision of the Committee by asking them to charge octroi duty on an amount which was less by 12 1/2% instead of 6 1/4% than the retail price of the goods. Plaintiffs succeeded to an extent though the Sub-Divisional Officer upheld the assessment of double duty. Having exhausted their remedies under the Act and having been benefited by the appellate decision, though partly, plaintiffs turned to the civil court to claim the refund. That is impermissible in view of the provision contained in Section 84(3) of the Act. | 0[ds]20. These provisions show in the fist place that the defendants indubitably possess the right and the power to assess and recover octroi duty and double duty on goods which are brought within the municipal limits for sale, consumption or use therein. The circumstance that the defendants might have acted in excess of or irregularly in the exercise of that power cannot support the conclusion that the assessment or recovery of the tax is without jurisdiction. Applying the test in Kamla Mills if the appropriate authority while exercising its jurisdiction and powers under the relevant provisions of the Act, holds erroneously that an assessment already made can be corrected or that an assessee is liable to pay double duty when Rule 14(b), in fact, does not justify such an imposition, it cannot be said that the decision of the authority is without jurisdiction. Questions of the correctness of the assessment apart from its constitutionality are, as held in Dhulabhai, for the decision of the authorities set up by the Act and a civil suit cannot lie of the orders of those authorities are given finality. There is no constitutional prohibition to the assessment which is impeached in the instant case as there was in Bharat Kala Bhandar, B. M. Lakhani, and Dhulabhai. The tax imposed in those cases being unconstitutional, its levy, as said by Mudholkar, J. who spoke for the majority in Bharat Kala Bhandar, was "without a vestige or semblance of authority or even a shadow of right".21. That is in regard to the power of the authority concerned to re-assess and to levy double duty. Secondly, both the Act and the Rules contain provisions which we have noticed above, enabling the aggrieved party effectively to challenge an illegal assessment or levy of double duty. By reason of the existence and availability of those special remedies, the ordinary remedy by way of a suit would be excluded on a true interpretation of Section 84(3) of the Act.22. The argument that double duty was levied on the plaintiffs though not justified by the terms of Rule 14(b) goes to the correctness of the levy, not to the jurisdiction of the assessing authority. That rule authorizes the imposition of double duty if dutiable articles are imported (a) without paying the duty or (b) without giving declaration to the Octroi Moharrir. It may be that neither of these two eventualities occurred and therefore there was no justification for imposing double duty. But the error could be corrected only in the manner provided in the Act and by the authority prescribed therein. The remedy by way of a suit is barred.23.Plaintiffs sought support to their contention as regards the maintainability of the suit for refund of double duty and revised duty, from certain observations contained in Firm Seth Radha Kishan v. Administrator, Municipal Committee, Ludhiana ([1964] 2 SCR 273 , 284 : AIR 1963 SC 1547 : [1963] 50 ITR 187 ) to the effect that "a suit in a civil court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions".In the first place, the assessment in the instant case was made by the authority duly empowered to do so and secondly, the authority was acting under the Act while revising the assessment and imposing double duty. It had the power to assess and levy double duty. If it exceeded that power it acted wrongly, not without jurisdiction. In Firm Seth Radha Kishan, the Municipal Committee being entitled to impose a certain rate of tax on common salt and higher rate in respect of salt of other kinds, imposed tax at the higher rate on "sambhar salt" which was a variety of common salt. Section 86 of the Punjab Municipal Act, 1911, provided that the liability of any person to be taxed cannot be questioned in any manner or by any authority other than that provided in the Act. That provision is identical with Section 84(3) of the C. P. Municipalities Act, 1922, with which we are concerned in the instant case. Section 86(2) of the Punjab Act provided that no refund of any tax shall be claimed by any person otherwise than in accordance with the provisions of the Act and the Rules thereunder. It was held by this Court that the liability to pay terminal tax was created by the Act and since a remedy was given to the party aggrieved in the enforcement of that liability, the suit for refund was not maintainable by reason of Section 86. The observations on which plaintiffs rely cannot, in the context, be taken to mean that the Act protects correct assessments only and that every incorrect or wrong order of assessment can be challenged by a suit though the statute gives it finality and provides full and effective remedies to challenge it. Except in matters of constitutionality and the like, a self-contained Code must have priority over the common means of vindicating rights. We would like to add that if the observations on which plaintiffs rely are to be understood literally, they are contrary to the decision in Kamla Mills case where, speaking for a seven-Judge Bench, Gajendragadkar, C. J., observed that if the appropriate authority while exercising its jurisdiction and powers under the relevant provisions of the Act comes to an erroneous conclusion, it cannot be said that the decision is without jurisdiction (p. 78).The instant case does not fall under the 1st proposition because Section 84(3) of the Act does not merely give finality to the orders passed by the special tribunals. It provides, expressly, that such orders shall not be questioned in any other manner or by any other authority than is provided in the Act. The 2nd proposition deals in its first paragraph with cases where there is an express bar to the civil courts jurisdiction. The second paragraph of that proposition deals with cases where there is no express exclusion. The instant case falls under either one or the other paragraph of this proposition, which rendered it necessary to examine whether the Act creates special rights and liabilities, provides for their determination by laying down that such rights and liabilities shall be determined by the special tribunals constituted under it and whether remedies normally associated with actions in civil courts are prescribed by the Act. Upon that examination we concluded that the suit is barred from the cognizance of the civil court.25. Not only that the Act of 1922 provides an effective remedy to an aggrieved party to challenge the assessment of octroi duty and to claim refund of duty illegally paid or recovered, but the plaintiffs in fact availed themselves of those remedies. In 1946-47 when the Municipal Committee re-opened and revised the past assessments by charging octroi duty on an amount which was only 6 1/4% less than the retail price of the goods and when it levied double duty by way of penalty, plaintiffs preferred an appeal against the decision of the Municipal Committee to the Sub-Divisional Officer, Jabalpur, who by an order dated July 14, 1948 modified the decision of the Committee by asking them to charge octroi duty on an amount which was less by 12 1/2% instead of 6 1/4% than the retail price of the goods. Plaintiffs succeeded to an extent though the Sub-Divisional Officer upheld the assessment of double duty. Having exhausted their remedies under the Act and having been benefited by the appellate decision, though partly, plaintiffs turned to the civil court to claim the refund. That is impermissible in view of the provision contained in Section 84(3) of the Act. | 0 | 6,392 | 1,443 | ### Instruction:
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double duty if dutiable articles are imported (a) without paying the duty or (b) without giving declaration to the Octroi Moharrir. It may be that neither of these two eventualities occurred and therefore there was no justification for imposing double duty. But the error could be corrected only in the manner provided in the Act and by the authority prescribed therein. The remedy by way of a suit is barred.23. Plaintiffs sought support to their contention as regards the maintainability of the suit for refund of double duty and revised duty, from certain observations contained in Firm Seth Radha Kishan v. Administrator, Municipal Committee, Ludhiana ([1964] 2 SCR 273 , 284 : AIR 1963 SC 1547 : [1963] 50 ITR 187 ) to the effect that "a suit in a civil court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions". In the first place, the assessment in the instant case was made by the authority duly empowered to do so and secondly, the authority was acting under the Act while revising the assessment and imposing double duty. It had the power to assess and levy double duty. If it exceeded that power it acted wrongly, not without jurisdiction. In Firm Seth Radha Kishan, the Municipal Committee being entitled to impose a certain rate of tax on common salt and higher rate in respect of salt of other kinds, imposed tax at the higher rate on "sambhar salt" which was a variety of common salt. Section 86 of the Punjab Municipal Act, 1911, provided that the liability of any person to be taxed cannot be questioned in any manner or by any authority other than that provided in the Act. That provision is identical with Section 84(3) of the C. P. Municipalities Act, 1922, with which we are concerned in the instant case. Section 86(2) of the Punjab Act provided that no refund of any tax shall be claimed by any person otherwise than in accordance with the provisions of the Act and the Rules thereunder. It was held by this Court that the liability to pay terminal tax was created by the Act and since a remedy was given to the party aggrieved in the enforcement of that liability, the suit for refund was not maintainable by reason of Section 86. The observations on which plaintiffs rely cannot, in the context, be taken to mean that the Act protects correct assessments only and that every incorrect or wrong order of assessment can be challenged by a suit though the statute gives it finality and provides full and effective remedies to challenge it. Except in matters of constitutionality and the like, a self-contained Code must have priority over the common means of vindicating rights. We would like to add that if the observations on which plaintiffs rely are to be understood literally, they are contrary to the decision in Kamla Mills case where, speaking for a seven-Judge Bench, Gajendragadkar, C. J., observed that if the appropriate authority while exercising its jurisdiction and powers under the relevant provisions of the Act comes to an erroneous conclusion, it cannot be said that the decision is without jurisdiction (p. 78).24. Plaintiffs reliance on the 1st proposition in Dhulabhais case is equally misconceived. The first two propositions formulated in that case contain a dichotomy. The 1st proposition refers to cases where the statute merely gives finality to orders of special tribunals. In such cases, according to that proposition, the civil courts jurisdiction would not be excluded if "the provisions of the particular Act are not complied with". The instant case does not fall under the 1st proposition because Section 84(3) of the Act does not merely give finality to the orders passed by the special tribunals. It provides, expressly, that such orders shall not be questioned in any other manner or by any other authority than is provided in the Act. The 2nd proposition deals in its first paragraph with cases where there is an express bar to the civil courts jurisdiction. The second paragraph of that proposition deals with cases where there is no express exclusion. The instant case falls under either one or the other paragraph of this proposition, which rendered it necessary to examine whether the Act creates special rights and liabilities, provides for their determination by laying down that such rights and liabilities shall be determined by the special tribunals constituted under it and whether remedies normally associated with actions in civil courts are prescribed by the Act. Upon that examination we concluded that the suit is barred from the cognizance of the civil court.25. Not only that the Act of 1922 provides an effective remedy to an aggrieved party to challenge the assessment of octroi duty and to claim refund of duty illegally paid or recovered, but the plaintiffs in fact availed themselves of those remedies. In 1946-47 when the Municipal Committee re-opened and revised the past assessments by charging octroi duty on an amount which was only 6 1/4% less than the retail price of the goods and when it levied double duty by way of penalty, plaintiffs preferred an appeal against the decision of the Municipal Committee to the Sub-Divisional Officer, Jabalpur, who by an order dated July 14, 1948 modified the decision of the Committee by asking them to charge octroi duty on an amount which was less by 12 1/2% instead of 6 1/4% than the retail price of the goods. Plaintiffs succeeded to an extent though the Sub-Divisional Officer upheld the assessment of double duty. Having exhausted their remedies under the Act and having been benefited by the appellate decision, though partly, plaintiffs turned to the civil court to claim the refund. That is impermissible in view of the provision contained in Section 84(3) of the Act.
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of those special remedies, the ordinary remedy by way of a suit would be excluded on a true interpretation of Section 84(3) of the Act.22. The argument that double duty was levied on the plaintiffs though not justified by the terms of Rule 14(b) goes to the correctness of the levy, not to the jurisdiction of the assessing authority. That rule authorizes the imposition of double duty if dutiable articles are imported (a) without paying the duty or (b) without giving declaration to the Octroi Moharrir. It may be that neither of these two eventualities occurred and therefore there was no justification for imposing double duty. But the error could be corrected only in the manner provided in the Act and by the authority prescribed therein. The remedy by way of a suit is barred.23.Plaintiffs sought support to their contention as regards the maintainability of the suit for refund of double duty and revised duty, from certain observations contained in Firm Seth Radha Kishan v. Administrator, Municipal Committee, Ludhiana ([1964] 2 SCR 273 , 284 : AIR 1963 SC 1547 : [1963] 50 ITR 187 ) to the effect that "a suit in a civil court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions".In the first place, the assessment in the instant case was made by the authority duly empowered to do so and secondly, the authority was acting under the Act while revising the assessment and imposing double duty. It had the power to assess and levy double duty. If it exceeded that power it acted wrongly, not without jurisdiction. In Firm Seth Radha Kishan, the Municipal Committee being entitled to impose a certain rate of tax on common salt and higher rate in respect of salt of other kinds, imposed tax at the higher rate on "sambhar salt" which was a variety of common salt. Section 86 of the Punjab Municipal Act, 1911, provided that the liability of any person to be taxed cannot be questioned in any manner or by any authority other than that provided in the Act. That provision is identical with Section 84(3) of the C. P. Municipalities Act, 1922, with which we are concerned in the instant case. Section 86(2) of the Punjab Act provided that no refund of any tax shall be claimed by any person otherwise than in accordance with the provisions of the Act and the Rules thereunder. It was held by this Court that the liability to pay terminal tax was created by the Act and since a remedy was given to the party aggrieved in the enforcement of that liability, the suit for refund was not maintainable by reason of Section 86. The observations on which plaintiffs rely cannot, in the context, be taken to mean that the Act protects correct assessments only and that every incorrect or wrong order of assessment can be challenged by a suit though the statute gives it finality and provides full and effective remedies to challenge it. Except in matters of constitutionality and the like, a self-contained Code must have priority over the common means of vindicating rights. We would like to add that if the observations on which plaintiffs rely are to be understood literally, they are contrary to the decision in Kamla Mills case where, speaking for a seven-Judge Bench, Gajendragadkar, C. J., observed that if the appropriate authority while exercising its jurisdiction and powers under the relevant provisions of the Act comes to an erroneous conclusion, it cannot be said that the decision is without jurisdiction (p. 78).The instant case does not fall under the 1st proposition because Section 84(3) of the Act does not merely give finality to the orders passed by the special tribunals. It provides, expressly, that such orders shall not be questioned in any other manner or by any other authority than is provided in the Act. The 2nd proposition deals in its first paragraph with cases where there is an express bar to the civil courts jurisdiction. The second paragraph of that proposition deals with cases where there is no express exclusion. The instant case falls under either one or the other paragraph of this proposition, which rendered it necessary to examine whether the Act creates special rights and liabilities, provides for their determination by laying down that such rights and liabilities shall be determined by the special tribunals constituted under it and whether remedies normally associated with actions in civil courts are prescribed by the Act. Upon that examination we concluded that the suit is barred from the cognizance of the civil court.25. Not only that the Act of 1922 provides an effective remedy to an aggrieved party to challenge the assessment of octroi duty and to claim refund of duty illegally paid or recovered, but the plaintiffs in fact availed themselves of those remedies. In 1946-47 when the Municipal Committee re-opened and revised the past assessments by charging octroi duty on an amount which was only 6 1/4% less than the retail price of the goods and when it levied double duty by way of penalty, plaintiffs preferred an appeal against the decision of the Municipal Committee to the Sub-Divisional Officer, Jabalpur, who by an order dated July 14, 1948 modified the decision of the Committee by asking them to charge octroi duty on an amount which was less by 12 1/2% instead of 6 1/4% than the retail price of the goods. Plaintiffs succeeded to an extent though the Sub-Divisional Officer upheld the assessment of double duty. Having exhausted their remedies under the Act and having been benefited by the appellate decision, though partly, plaintiffs turned to the civil court to claim the refund. That is impermissible in view of the provision contained in Section 84(3) of the Act.
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R.B.S.S. Munnalal Vs. S.S. Rajkumar | the suit for partition the interest of Khilonabai in the estate was merely inchoate, for she had a mere right to be maintained out of the estate and that her right continued to retain that character till actual division was made and the share declared by the preliminary decree was separated and delivered to her; on her death before actual division the inchoate interest again reverted to the estate out of which it was carved. Counsel relied upon the judgment of the Judicial Committee in Pratapmull Agarwalla v. Dhanbati Bibi, 63 Ind App 33: (AIR 1936 PC 20 ) in support of his plea that under the Mitakshara law, when the family estate is divided a wife or mother is entitled to a share, but is not recognised as the owner of such share until the division of the property is actually made, as she has no pre-existing right in the estate except a right of maintenance. Counsel submitted that this rule of Hindu law was not affected by anything contained in S. 14 of the Hindu succession Act.( 16 ) By S. 14(1) the Legislature sought to convert the interest of a , Hindu female which under the Sastric Hindu law would have been. regarded as a limited interest into an absolute interest and by the Explanation thereto gave to the expression "property" the widest connotation. The expression includes property acquired by a Hindu female by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever. By S. 14(1) manifestly it is intended to convert the interest which a Hindu female has in property however restricted the nature of that interest under the Sastric Hindu law may be into absolute estate. Pratapmulls case, 68 Ind 1500 App S3: (AIR 1936 00 20) undoubtedly laid down that till actual division of the share declared in her favour by a preliminary decree for partition of the joint family estate a Hindu wife or mother, was not recognised as owner, but that rule cannot in our Judgment apply after the enactment of the Hindu Succession Act. The Act is a codifying enactment, and has made far reaching changes in the structure of the Hindu law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate. She is under the Act regarded as a fresh stock of descent in respect of property possessed by. her at the time of her death. It is true that under the Sastric Hindu Law, the share given to a Hindu widow on partition between her sons or her grandsons was in lieu of her right to maintenance. She was not entitled to claim partition. But the Legislature by enacting the Hindu Womens Right to property Act, 1937 made a significant departure in that branch of the law; the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned she became owner in severalty of her share, subject of course to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual or civil. It cannot be assumed having regard to this development that in enacting S. 14 of the Hindu Succession Act, the Legislature merely intended to declare the rule enunciated by the Privy council in Pratapmulls case, 63 Ind App 33: (AIR 1936 PC 20 ). Section 4 of the Act gives an overriding effect to the provisions of the Act. It enacts: "Save as otherwise expressly provided in this Act, (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act: (b). ........ .......... ....... ....." Manifestly, the Legislature intended to supersede the rules of Hindu law on all matters in respect of which there was an express provision made in the Act. Normally a right declared in an estate by a preliminary decree would be regarded as property, and there is nothing in the context in which S. 14 occurs or in the phraseology used by the Legislature to warrant the view that such a right declared in relation to the estate of a joint family in favour of a Hindu widow is not property within the meaning of S. 14. In the light of the scheme of the Act and its avowed purpose it would be difficult, without doing violence to the language used in the enactment, to assume that a right declared in property in favour of a parson under a decree for partition is not a right to property. If under a preliminary decree the right in favour of a Hindu male be regarded as property the right declared in favour of a Hindu female must also be regarded as property. The High court was therefore, in our judgment, in error in holding that the right declared in favour of Khilonabai was not possessed by her, nor are we able to agree with the submission of the learned counsel for Rajkumar that it was not property within the meaning of S.14 of the Act.( 17 ) On that view of the case, by virtue of Ss. 15 and 16 of the Act the interest declared in favour of Khilonabai devolved upon her sons Munnalal and Ramchand to the exclusion of her grandson Rajkumar. The decree passed by the High court is therefore modified in this respect and the decree passed by the trial court restored. | 1[ds]( 8 ) The third question is easily answered. The trial court appointed a commissioner to propose a partition of joint family property, and for that purpose the; court authorised him to ascertain the property the debts which the family owed and also the individual liability of the parties for the debts. For deciding those questions the Commissioner was empowered to record statements of the parties, frame issues and to record evidence as might be necessary. The commissioner was also directed to submit his proposals relating to the right of Bhuribai to be maintained out of the joint family property. This order, it appears, was passed with the consent of all the parties. It is true that the decree drawn up by the trial court is not strictly in accordance with the directions given in the judgment. But it is manifest that the trial Judge only directed the Commissioner to submit his proposals for partition of the property, and for that purpose authorised him to ascertain the property which was available for partition and to ascertain the liability of the joint family. By so authorising the Commissioner, the trial court did not abdicate its functions to the commissioner: the commissioner was merely called upon to make proposals for partition, on which the parties would be heard, and the court would adjudicate upon such proposals in the light of the decree, and the contentions of the parties. The proposals of the commissioner cannot from their very nature be binding upon the parties nor the reasons in support thereof. The order it may be remembered was made with the consent of the parties no objection to the order was, it appears, pressed before the High court. We do not think that any case is made out for modifying that part of the order.(12 ) The plea about the invalidity of the adoption of Rajkumar by Bhuribai must therefore fail.(16 ) By S. 14(1) the Legislature sought to convert the interest of a , Hindu female which under the Sastric Hindu law would have been. regarded as a limited interest into an absolute interest and by the Explanation thereto gave to the expression "property" the widest connotation. The expression includes property acquired by a Hindu female by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever. By S. 14(1) manifestly it is intended to convert the interest which a Hindu female has in property however restricted the nature of that interest under the Sastric Hindu law may be into absolute estate. Pratapmulls case, 68 Ind 1500 App S3: (AIR 1936 00 20) undoubtedly laid down that till actual division of the share declared in her favour by a preliminary decree for partition of the joint family estate a Hindu wife or mother, was not recognised as owner, but that rule cannot in our Judgment apply after the enactment of the Hindu Succession Act. The Act is a codifying enactment, and has made far reaching changes in the structure of the Hindu law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate. She is under the Act regarded as a fresh stock of descent in respect of property possessed by. her at the time of her death. It is true that under the Sastric Hindu Law, the share given to a Hindu widow on partition between her sons or her grandsons was in lieu of her right to maintenance. She was not entitled to claim partition. But the Legislature by enacting the Hindu Womens Right to property Act, 1937 made a significant departure in that branch of the law; the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned she became owner in severalty of her share, subject of course to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual or civil. It cannot be assumed having regard to this development that in enacting S. 14 of the Hindu Succession Act, the Legislature merely intended to declare the rule enunciated by the Privy council in Pratapmulls case, 63 Ind App 33: (AIR 1936 PC 20 ). Section 4 of the Act gives an overriding effect to the provisions of the Act. It enacts: "Save as otherwise expressly provided in this Act, (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act: (b). ........ .......... ....... ....." Manifestly, the Legislature intended to supersede the rules of Hindu law on all matters in respect of which there was an express provision made in the Act. Normally a right declared in an estate by a preliminary decree would be regarded as property, and there is nothing in the context in which S. 14 occurs or in the phraseology used by the Legislature to warrant the view that such a right declared in relation to the estate of a joint family in favour of a Hindu widow is not property within the meaning of S. 14. In the light of the scheme of the Act and its avowed purpose it would be difficult, without doing violence to the language used in the enactment, to assume that a right declared in property in favour of a parson under a decree for partition is not a right to property. If under a preliminary decree the right in favour of a Hindu male be regarded as property the right declared in favour of a Hindu female must also be regarded as property. The High court was therefore, in our judgment, in error in holding that the right declared in favour of Khilonabai was not possessed by her, nor are we able to agree with the submission of the learned counsel for Rajkumar that it was not property within the meaning of S.14 of the Act.( 17 ) On that view of the case, by virtue of Ss. 15 and 16 of the Act the interest declared in favour of Khilonabai devolved upon her sons Munnalal and Ramchand to the exclusion of her grandson Rajkumar. The decree passed by the High court is therefore modified in this respect and the decree passed by the trial court restored. | 1 | 5,167 | 1,249 | ### Instruction:
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the suit for partition the interest of Khilonabai in the estate was merely inchoate, for she had a mere right to be maintained out of the estate and that her right continued to retain that character till actual division was made and the share declared by the preliminary decree was separated and delivered to her; on her death before actual division the inchoate interest again reverted to the estate out of which it was carved. Counsel relied upon the judgment of the Judicial Committee in Pratapmull Agarwalla v. Dhanbati Bibi, 63 Ind App 33: (AIR 1936 PC 20 ) in support of his plea that under the Mitakshara law, when the family estate is divided a wife or mother is entitled to a share, but is not recognised as the owner of such share until the division of the property is actually made, as she has no pre-existing right in the estate except a right of maintenance. Counsel submitted that this rule of Hindu law was not affected by anything contained in S. 14 of the Hindu succession Act.( 16 ) By S. 14(1) the Legislature sought to convert the interest of a , Hindu female which under the Sastric Hindu law would have been. regarded as a limited interest into an absolute interest and by the Explanation thereto gave to the expression "property" the widest connotation. The expression includes property acquired by a Hindu female by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever. By S. 14(1) manifestly it is intended to convert the interest which a Hindu female has in property however restricted the nature of that interest under the Sastric Hindu law may be into absolute estate. Pratapmulls case, 68 Ind 1500 App S3: (AIR 1936 00 20) undoubtedly laid down that till actual division of the share declared in her favour by a preliminary decree for partition of the joint family estate a Hindu wife or mother, was not recognised as owner, but that rule cannot in our Judgment apply after the enactment of the Hindu Succession Act. The Act is a codifying enactment, and has made far reaching changes in the structure of the Hindu law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate. She is under the Act regarded as a fresh stock of descent in respect of property possessed by. her at the time of her death. It is true that under the Sastric Hindu Law, the share given to a Hindu widow on partition between her sons or her grandsons was in lieu of her right to maintenance. She was not entitled to claim partition. But the Legislature by enacting the Hindu Womens Right to property Act, 1937 made a significant departure in that branch of the law; the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned she became owner in severalty of her share, subject of course to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual or civil. It cannot be assumed having regard to this development that in enacting S. 14 of the Hindu Succession Act, the Legislature merely intended to declare the rule enunciated by the Privy council in Pratapmulls case, 63 Ind App 33: (AIR 1936 PC 20 ). Section 4 of the Act gives an overriding effect to the provisions of the Act. It enacts: "Save as otherwise expressly provided in this Act, (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act: (b). ........ .......... ....... ....." Manifestly, the Legislature intended to supersede the rules of Hindu law on all matters in respect of which there was an express provision made in the Act. Normally a right declared in an estate by a preliminary decree would be regarded as property, and there is nothing in the context in which S. 14 occurs or in the phraseology used by the Legislature to warrant the view that such a right declared in relation to the estate of a joint family in favour of a Hindu widow is not property within the meaning of S. 14. In the light of the scheme of the Act and its avowed purpose it would be difficult, without doing violence to the language used in the enactment, to assume that a right declared in property in favour of a parson under a decree for partition is not a right to property. If under a preliminary decree the right in favour of a Hindu male be regarded as property the right declared in favour of a Hindu female must also be regarded as property. The High court was therefore, in our judgment, in error in holding that the right declared in favour of Khilonabai was not possessed by her, nor are we able to agree with the submission of the learned counsel for Rajkumar that it was not property within the meaning of S.14 of the Act.( 17 ) On that view of the case, by virtue of Ss. 15 and 16 of the Act the interest declared in favour of Khilonabai devolved upon her sons Munnalal and Ramchand to the exclusion of her grandson Rajkumar. The decree passed by the High court is therefore modified in this respect and the decree passed by the trial court restored.
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it is manifest that the trial Judge only directed the Commissioner to submit his proposals for partition of the property, and for that purpose authorised him to ascertain the property which was available for partition and to ascertain the liability of the joint family. By so authorising the Commissioner, the trial court did not abdicate its functions to the commissioner: the commissioner was merely called upon to make proposals for partition, on which the parties would be heard, and the court would adjudicate upon such proposals in the light of the decree, and the contentions of the parties. The proposals of the commissioner cannot from their very nature be binding upon the parties nor the reasons in support thereof. The order it may be remembered was made with the consent of the parties no objection to the order was, it appears, pressed before the High court. We do not think that any case is made out for modifying that part of the order.(12 ) The plea about the invalidity of the adoption of Rajkumar by Bhuribai must therefore fail.(16 ) By S. 14(1) the Legislature sought to convert the interest of a , Hindu female which under the Sastric Hindu law would have been. regarded as a limited interest into an absolute interest and by the Explanation thereto gave to the expression "property" the widest connotation. The expression includes property acquired by a Hindu female by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever. By S. 14(1) manifestly it is intended to convert the interest which a Hindu female has in property however restricted the nature of that interest under the Sastric Hindu law may be into absolute estate. Pratapmulls case, 68 Ind 1500 App S3: (AIR 1936 00 20) undoubtedly laid down that till actual division of the share declared in her favour by a preliminary decree for partition of the joint family estate a Hindu wife or mother, was not recognised as owner, but that rule cannot in our Judgment apply after the enactment of the Hindu Succession Act. The Act is a codifying enactment, and has made far reaching changes in the structure of the Hindu law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate. She is under the Act regarded as a fresh stock of descent in respect of property possessed by. her at the time of her death. It is true that under the Sastric Hindu Law, the share given to a Hindu widow on partition between her sons or her grandsons was in lieu of her right to maintenance. She was not entitled to claim partition. But the Legislature by enacting the Hindu Womens Right to property Act, 1937 made a significant departure in that branch of the law; the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned she became owner in severalty of her share, subject of course to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual or civil. It cannot be assumed having regard to this development that in enacting S. 14 of the Hindu Succession Act, the Legislature merely intended to declare the rule enunciated by the Privy council in Pratapmulls case, 63 Ind App 33: (AIR 1936 PC 20 ). Section 4 of the Act gives an overriding effect to the provisions of the Act. It enacts: "Save as otherwise expressly provided in this Act, (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act: (b). ........ .......... ....... ....." Manifestly, the Legislature intended to supersede the rules of Hindu law on all matters in respect of which there was an express provision made in the Act. Normally a right declared in an estate by a preliminary decree would be regarded as property, and there is nothing in the context in which S. 14 occurs or in the phraseology used by the Legislature to warrant the view that such a right declared in relation to the estate of a joint family in favour of a Hindu widow is not property within the meaning of S. 14. In the light of the scheme of the Act and its avowed purpose it would be difficult, without doing violence to the language used in the enactment, to assume that a right declared in property in favour of a parson under a decree for partition is not a right to property. If under a preliminary decree the right in favour of a Hindu male be regarded as property the right declared in favour of a Hindu female must also be regarded as property. The High court was therefore, in our judgment, in error in holding that the right declared in favour of Khilonabai was not possessed by her, nor are we able to agree with the submission of the learned counsel for Rajkumar that it was not property within the meaning of S.14 of the Act.( 17 ) On that view of the case, by virtue of Ss. 15 and 16 of the Act the interest declared in favour of Khilonabai devolved upon her sons Munnalal and Ramchand to the exclusion of her grandson Rajkumar. The decree passed by the High court is therefore modified in this respect and the decree passed by the trial court restored.
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The D.F.O., South Kheri & Others Vs. Ram Sanehi Singh | the Allahabad High Court holding that the Divisional Forest Officer had acted in exercise of authority conferred upon him by the terms of the contract, and that the remedy of the respondent was to claim relief in a regular suit for enforcement of the agreement or for damages and not in a petition under Art. 226 of the Constitution. The learned Judge also held that the petition raised questions of fact which could be tried not in a writ petition under Art. 226 of the Constitution but in a suit. He further held that that there was no evidence in support of the plea that the authorities acted mala fide. 3. In appeal against the order dismissing the petition, a Division Bench of the High Court of Allahabad reversed the order holding, following the judgment of this Court in K. N. Guruswamy v. State of Mysore, (1955) 1 SCR 305 = (AIR 1954 SC 592 ) that where a party interested in a contract claims that he has not received the same treatment and he has not been given the same chance as anybody else he is entitled to move a petition under Art. 226 of the Constitution. The High Court held that the order made by the Divisional Forest Officer in exercise of the statutory authority was liable to be quashed, because it was made on "irrelevant considerations". The Court also observed that since a competent officer duly authorized had already "passed the railway sleepers" and the decision had been given effect to, it was not open to the Divisional Forest Officer to rescind the order. The High Court did not consider the plea that the Divisional Forest Officer acted mala fide. With certificate granted by the High Court this appeal is filed by the Forest Authorities. 4. Counsel for the appellants contended that since the dispute arose out of the terms of the contract and the Divisional Forest Officer under the terms of the contract had authority to modify any action taken by a subordinate forest authority, the remedy of the respondent was to institute an action in the civil Court and that the writ petition was not maintainable. But in the present case the order is passed by a public authority modifying the order or proceeding of a subordinate forest authority. By that order he has deprived the respondent of a valuable right. We are unable to hold that merely because the source of the right which the respondent claims was initially in a contract, for obtaining relief against any arbitrary and unlawful action on the part of a public authority he must resort to a suit and not to a petition by way of a writ. In view of the judgment of this Court in K. N. Guruswamys case, (1955) 1 SCR 305 = (AIR 1954 SC 592 ) there can be no doubt that the petition was maintainable, even if the right to relief arose out of an alleged breach of contract, where the action challenged was of a public authority invested with statutory power. 5. It is unnecessary to consider whether the order of the Divisional Forest Officer is made on "irrelevant grounds" because it is clear that before passing the order the Divisional Forest Officer did not call for any explanation of the respondent, and gave him no hearing before passing the order. It is averred in Paragraph-22 (i) of the petition that the "cancellation order is in violation of the principles of natural justice having been done at a very late stage without affording any opportunity to the petitioner (respondent) to say anything against the action cancelling his tallies". To that averment, no reply was made by the forest authorities against whom the petition was filed. Granting that the order was administrative and not quasi-judicial, the order had still to be made in a manner consonant with the rules of natural justice when it affected the respondents rights to property. This Court in the case of State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269 held in dealing with an administrative order that "the rule that a party to whose prejudice the order is intended to be passed is entitled to a hearing applied alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers". The Divisional Forest Officer in the present case set aside the proceeding of a subordinate authority and passed an order which involved the respondent in considerable loss. The order involved civil consequences. Without considering whether the order of the Divisional Forest Officer was vitiated because of irrelevant considerations, the order must be set aside on the simple ground that it was passed contrary to the basic rules of natural justice. 6. Counsel for the appellants contended that this objection was not raised before the High Court either in the Court of First Instance or before the Division Bench. But the objection was prominently mentioned in the petition and there is no reply to it. We are unable to hold that because the High Court has not considered the question, the respondent will not be allowed to rely upon this contention in support of the order. If the plea raised by the respondent in his petition is true, and we see no reason to hold that it is not, the order challenged by him is plainly illegal and is liable to be set aside. 7. We express no opinion on the correctness of the view expressed by the High Court on the two questions decided by them, nor on the question that the action of the Divisional Forest Officer was mala fide. If hereafter any order is passed by the Forest Authorities, the validity of the order will be determined uninfluenced by the findings recorded by the High Court in appeal. | 0[ds]4. Counsel for the appellants contended that since the dispute arose out of the terms of the contract and the Divisional Forest Officer under the terms of the contract had authority to modify any action taken by a subordinate forest authority, the remedy of the respondent was to institute an action in the civil Court and that the writ petition was not. But in the present case the order is passed by a public authority modifying the order or proceeding of a subordinate forest authority. By that order he has deprived the respondent of a valuable right. We are unable to hold that merely because the source of the right which the respondent claims was initially in a contract, for obtaining relief against any arbitrary and unlawful action on the part of a public authority he must resort to a suit and not to a petition by way of a writ. In view of the judgment of this Court in K. N. Guruswamys case, (1955) 1 SCR 305 = (AIR 1954 SC 592 ) there can be no doubt that the petition was maintainable, even if the right to relief arose out of an alleged breach of contract, where the action challenged was of a public authority invested with statutory power5. It is unnecessary to consider whether the order of the Divisional Forest Officer is made on "irrelevant grounds" because it is clear that before passing the order the Divisional Forest Officer did not call for any explanation of the respondent, and gave him no hearing before passing the order. It is averred in2 (i) of the petition that the "cancellation order is in violation of the principles of natural justice having been done at a very late stage without affording any opportunity to the petitioner (respondent) to say anything against the action cancelling his tallies". To that averment, no reply was made by the forest authorities against whom the petition was filed. Granting that the order was administrative and not, the order had still to be made in a manner consonant with the rules of natural justice when it affected the respondents rights to property. This Court in the case of State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269 held in dealing with an administrative order that "the rule that a party to whose prejudice the order is intended to be passed is entitled to a hearing applied alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutionalp that every citizen is protected against exercise of arbitrary authority by the State or its officers". The Divisional Forest Officer in the present case set aside the proceeding of a subordinate authority and passed an order which involved the respondent in considerable loss. The order involved civil consequences. Without considering whether the order of the Divisional Forest Officer was vitiated because of irrelevant considerations, the order must be set aside on the simple ground that it was passed contrary to the basic rules of natural justice6. Counsel for the appellants contended that this objection was not raised before the High Court either in the Court of First Instance or before the Division Bench.But the objection was prominently mentioned in the petition and there is no reply to it. We are unable to hold that because the High Court has not considered the question, the respondent will not be allowed to rely upon this contention in support of the order. If the plea raised by the respondent in his petition is true, and we see no reason to hold that it is not, the order challenged by him is plainly illegal and is liable to be set aside7. We express no opinion on the correctness of the view expressed by the High Court on the two questions decided by them, nor on the question that the action of the Divisional Forest Officer was mala fide. If hereafter any order is passed by the Forest Authorities, the validity of the order will be determined uninfluenced by the findings recorded by the High Court in appeal. | 0 | 1,345 | 748 | ### Instruction:
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the Allahabad High Court holding that the Divisional Forest Officer had acted in exercise of authority conferred upon him by the terms of the contract, and that the remedy of the respondent was to claim relief in a regular suit for enforcement of the agreement or for damages and not in a petition under Art. 226 of the Constitution. The learned Judge also held that the petition raised questions of fact which could be tried not in a writ petition under Art. 226 of the Constitution but in a suit. He further held that that there was no evidence in support of the plea that the authorities acted mala fide. 3. In appeal against the order dismissing the petition, a Division Bench of the High Court of Allahabad reversed the order holding, following the judgment of this Court in K. N. Guruswamy v. State of Mysore, (1955) 1 SCR 305 = (AIR 1954 SC 592 ) that where a party interested in a contract claims that he has not received the same treatment and he has not been given the same chance as anybody else he is entitled to move a petition under Art. 226 of the Constitution. The High Court held that the order made by the Divisional Forest Officer in exercise of the statutory authority was liable to be quashed, because it was made on "irrelevant considerations". The Court also observed that since a competent officer duly authorized had already "passed the railway sleepers" and the decision had been given effect to, it was not open to the Divisional Forest Officer to rescind the order. The High Court did not consider the plea that the Divisional Forest Officer acted mala fide. With certificate granted by the High Court this appeal is filed by the Forest Authorities. 4. Counsel for the appellants contended that since the dispute arose out of the terms of the contract and the Divisional Forest Officer under the terms of the contract had authority to modify any action taken by a subordinate forest authority, the remedy of the respondent was to institute an action in the civil Court and that the writ petition was not maintainable. But in the present case the order is passed by a public authority modifying the order or proceeding of a subordinate forest authority. By that order he has deprived the respondent of a valuable right. We are unable to hold that merely because the source of the right which the respondent claims was initially in a contract, for obtaining relief against any arbitrary and unlawful action on the part of a public authority he must resort to a suit and not to a petition by way of a writ. In view of the judgment of this Court in K. N. Guruswamys case, (1955) 1 SCR 305 = (AIR 1954 SC 592 ) there can be no doubt that the petition was maintainable, even if the right to relief arose out of an alleged breach of contract, where the action challenged was of a public authority invested with statutory power. 5. It is unnecessary to consider whether the order of the Divisional Forest Officer is made on "irrelevant grounds" because it is clear that before passing the order the Divisional Forest Officer did not call for any explanation of the respondent, and gave him no hearing before passing the order. It is averred in Paragraph-22 (i) of the petition that the "cancellation order is in violation of the principles of natural justice having been done at a very late stage without affording any opportunity to the petitioner (respondent) to say anything against the action cancelling his tallies". To that averment, no reply was made by the forest authorities against whom the petition was filed. Granting that the order was administrative and not quasi-judicial, the order had still to be made in a manner consonant with the rules of natural justice when it affected the respondents rights to property. This Court in the case of State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269 held in dealing with an administrative order that "the rule that a party to whose prejudice the order is intended to be passed is entitled to a hearing applied alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers". The Divisional Forest Officer in the present case set aside the proceeding of a subordinate authority and passed an order which involved the respondent in considerable loss. The order involved civil consequences. Without considering whether the order of the Divisional Forest Officer was vitiated because of irrelevant considerations, the order must be set aside on the simple ground that it was passed contrary to the basic rules of natural justice. 6. Counsel for the appellants contended that this objection was not raised before the High Court either in the Court of First Instance or before the Division Bench. But the objection was prominently mentioned in the petition and there is no reply to it. We are unable to hold that because the High Court has not considered the question, the respondent will not be allowed to rely upon this contention in support of the order. If the plea raised by the respondent in his petition is true, and we see no reason to hold that it is not, the order challenged by him is plainly illegal and is liable to be set aside. 7. We express no opinion on the correctness of the view expressed by the High Court on the two questions decided by them, nor on the question that the action of the Divisional Forest Officer was mala fide. If hereafter any order is passed by the Forest Authorities, the validity of the order will be determined uninfluenced by the findings recorded by the High Court in appeal.
### Response:
0
### Explanation:
4. Counsel for the appellants contended that since the dispute arose out of the terms of the contract and the Divisional Forest Officer under the terms of the contract had authority to modify any action taken by a subordinate forest authority, the remedy of the respondent was to institute an action in the civil Court and that the writ petition was not. But in the present case the order is passed by a public authority modifying the order or proceeding of a subordinate forest authority. By that order he has deprived the respondent of a valuable right. We are unable to hold that merely because the source of the right which the respondent claims was initially in a contract, for obtaining relief against any arbitrary and unlawful action on the part of a public authority he must resort to a suit and not to a petition by way of a writ. In view of the judgment of this Court in K. N. Guruswamys case, (1955) 1 SCR 305 = (AIR 1954 SC 592 ) there can be no doubt that the petition was maintainable, even if the right to relief arose out of an alleged breach of contract, where the action challenged was of a public authority invested with statutory power5. It is unnecessary to consider whether the order of the Divisional Forest Officer is made on "irrelevant grounds" because it is clear that before passing the order the Divisional Forest Officer did not call for any explanation of the respondent, and gave him no hearing before passing the order. It is averred in2 (i) of the petition that the "cancellation order is in violation of the principles of natural justice having been done at a very late stage without affording any opportunity to the petitioner (respondent) to say anything against the action cancelling his tallies". To that averment, no reply was made by the forest authorities against whom the petition was filed. Granting that the order was administrative and not, the order had still to be made in a manner consonant with the rules of natural justice when it affected the respondents rights to property. This Court in the case of State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269 held in dealing with an administrative order that "the rule that a party to whose prejudice the order is intended to be passed is entitled to a hearing applied alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutionalp that every citizen is protected against exercise of arbitrary authority by the State or its officers". The Divisional Forest Officer in the present case set aside the proceeding of a subordinate authority and passed an order which involved the respondent in considerable loss. The order involved civil consequences. Without considering whether the order of the Divisional Forest Officer was vitiated because of irrelevant considerations, the order must be set aside on the simple ground that it was passed contrary to the basic rules of natural justice6. Counsel for the appellants contended that this objection was not raised before the High Court either in the Court of First Instance or before the Division Bench.But the objection was prominently mentioned in the petition and there is no reply to it. We are unable to hold that because the High Court has not considered the question, the respondent will not be allowed to rely upon this contention in support of the order. If the plea raised by the respondent in his petition is true, and we see no reason to hold that it is not, the order challenged by him is plainly illegal and is liable to be set aside7. We express no opinion on the correctness of the view expressed by the High Court on the two questions decided by them, nor on the question that the action of the Divisional Forest Officer was mala fide. If hereafter any order is passed by the Forest Authorities, the validity of the order will be determined uninfluenced by the findings recorded by the High Court in appeal.
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Rajagopal Pillai & Another Vs. Pakkiam Ammal & Others | property. It was held that the legal consequence of this change in the character of the property would follow regardless of Annavis intention, as appearing from this deed of release, to keep the property confined to himself and his four goes. It was pointed out that the deed of release (Ext. B-3) executed by Arumugam on November 10, 1944 could not have the effect of bringing about a severance of joint status. The High Court explained that in 1944 the joint family of Annavi Pillai and his five sons had no property of its own and Arumugam by stating in this document (Ext. B-3) that he abandoned his rights over his fathers self-acquired property did not cause a division in status. It appears from the Judgment that the High Court was conscious of the position in law that renunciation by a coparcener of his interest in the joint family property separates him from the other members, but it was held that as there was no joint family property at the time, execution of the deed of release by Arumugam could not have the effect of bringing about a division in status. The High Court found that as Arumugam continued to be a member of the joint family in 1946, he was entitled to a share in the joint family property which on his death in 1954 devolved on his wife. On these findings the High Court affirmed the judgment and decree of the trial Court and dismissed the appeal preferred by the defendants.6. Mr. Natesan, learned counsel for the appellants, contended that the clear effect of the deed of release executed by Arumugam was severance of the joint status. This document (Ext. B-3) which we have set out above shows that "as a result of lack of amity" between Arumugam and his father, the former on receiving Rs. 500/- in cash relinquished all claims on his fathers self-acquired property, though he admitted having "no kind of legal right" therein. According to the learned counsel, what Arumugam had given up by this deed of release was not his chance of Succession to his fathers self-acquired property but an existing right. It was submitted that under the Mitakshara law which governs the parties the interest of a son in the self-acquired property of his father is not a spes successions, but a real right vested in the son by birth though it is subject to the fathers unqualified right to deal with and dispose of the property in any manner he likes. It is however not necessary for the purpose of this appeal to examine the nature of the interest that a son has in the self-acquired property of his father under the Mitakshara law; what is necessary is to ascertain the nature of the right that Arumugam relinquished in the instant case. It is clear from Arumugams deed of release that what he abandoned was his right, if any, in his fathers property so lone his father was alive and also any claim that he might make on such property after his fathers death. But in 1944 when Arumugam executed this deed of release in favour of Annavi Pillai neither of them anticipated that two years later in 1946 Annavis self-acquired property would be converted into joint family property. In 1944 Arumugam could not possibly give up a right which was not in contemplation of either himself or his father. As the High Court pointed out"it is a well settled rule of interpretation of deeds of release that however wide and general the covenant of release may be, its operation must be restricted to the rights which are in the contemplation or in controversy between the parties and would not cover or comprehend rights which are never in the minds of the parties at that time."As an authority for this proposition of law the High Court referred to the decision of this Court in Chinnathayi v. Kula - sekara, 1952 SCR 241 = (AIR 1952 SC 29 ) where this Court Observed"It is well settled that general words of release do not mean release of rights other than those then put up and have to be limited to the circumstances which were in the contemplation of the parties when it wag executed."7. The next question is whether Arumugam was a member of the joint family in 1946: if he was then as the High Court pointed out the legal consequence of the self-acquired property being converted into joint family property would follow regardless of Annavi Pillais intentions, It was not contended that even if Arumugam could not be said to have given up his right in the joint family property by the deed of release yet the execution of the deed by itself effected a division in status. The deed of release contains a statement that "as a result of lack of amity" between Arumugam and his father, the former had been residing separately for some time: that however does not establish that Arumugam had gone out of the joint family. Just as Rajagopal did not cease to be a member of the joint family when displeased with his conduct Annavi Pillai thought of disinheriting him by executing the Will on June 5, 1943. Subsequently, when the misunderstanding with Rajagona1 was removed, Annavi cancelled the Will by executing another deed on October 21. 1946. In this deed of cancellation (Ext. A-11) there is a statement to which we have referred above, suggesting that Annavi contemplated dividing the property among all his sons. This indicates that Arumugam was still considered as a member of the family. It has also been found that Arumugam came back to live with the other members of the family till 1954 when he died. It cannot therefore be said that Arumugam had ceased to be a member of the joint family in 1944 and it must be held that he had a share in the joint family property to which his widow became entitled on his death. | 0[ds]It was not contended that even if Arumugam could not be said to have given up his right in the joint family property by the deed of release yet the execution of the deed by itself effected a division in status. The deed of release contains a statement that "as a result of lack of amity" between Arumugam and his father, the former had been residing separately for some time: that however does not establish that Arumugam had gone out of the joint family. Just as Rajagopal did not cease to be a member of the joint family when displeased with his conduct Annavi Pillai thought of disinheriting him by executing the Will on June 5, 1943. Subsequently, when the misunderstanding with Rajagona1 was removed, Annavi cancelled the Will by executing another deed on October 21. 1946. In this deed of cancellation (Ext.there is a statement to which we have referred above, suggesting that Annavi contemplated dividing the property among all his sons. This indicates that Arumugam was still considered as a member of the family. It has also been found that Arumugam came back to live with the other members of the family till 1954 when he died. It cannot therefore be said that Arumugam had ceased to be a member of the joint family in 1944 and it must be held that he had a share in the joint family property to which his widow became entitled on his death. | 0 | 2,275 | 265 | ### Instruction:
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property. It was held that the legal consequence of this change in the character of the property would follow regardless of Annavis intention, as appearing from this deed of release, to keep the property confined to himself and his four goes. It was pointed out that the deed of release (Ext. B-3) executed by Arumugam on November 10, 1944 could not have the effect of bringing about a severance of joint status. The High Court explained that in 1944 the joint family of Annavi Pillai and his five sons had no property of its own and Arumugam by stating in this document (Ext. B-3) that he abandoned his rights over his fathers self-acquired property did not cause a division in status. It appears from the Judgment that the High Court was conscious of the position in law that renunciation by a coparcener of his interest in the joint family property separates him from the other members, but it was held that as there was no joint family property at the time, execution of the deed of release by Arumugam could not have the effect of bringing about a division in status. The High Court found that as Arumugam continued to be a member of the joint family in 1946, he was entitled to a share in the joint family property which on his death in 1954 devolved on his wife. On these findings the High Court affirmed the judgment and decree of the trial Court and dismissed the appeal preferred by the defendants.6. Mr. Natesan, learned counsel for the appellants, contended that the clear effect of the deed of release executed by Arumugam was severance of the joint status. This document (Ext. B-3) which we have set out above shows that "as a result of lack of amity" between Arumugam and his father, the former on receiving Rs. 500/- in cash relinquished all claims on his fathers self-acquired property, though he admitted having "no kind of legal right" therein. According to the learned counsel, what Arumugam had given up by this deed of release was not his chance of Succession to his fathers self-acquired property but an existing right. It was submitted that under the Mitakshara law which governs the parties the interest of a son in the self-acquired property of his father is not a spes successions, but a real right vested in the son by birth though it is subject to the fathers unqualified right to deal with and dispose of the property in any manner he likes. It is however not necessary for the purpose of this appeal to examine the nature of the interest that a son has in the self-acquired property of his father under the Mitakshara law; what is necessary is to ascertain the nature of the right that Arumugam relinquished in the instant case. It is clear from Arumugams deed of release that what he abandoned was his right, if any, in his fathers property so lone his father was alive and also any claim that he might make on such property after his fathers death. But in 1944 when Arumugam executed this deed of release in favour of Annavi Pillai neither of them anticipated that two years later in 1946 Annavis self-acquired property would be converted into joint family property. In 1944 Arumugam could not possibly give up a right which was not in contemplation of either himself or his father. As the High Court pointed out"it is a well settled rule of interpretation of deeds of release that however wide and general the covenant of release may be, its operation must be restricted to the rights which are in the contemplation or in controversy between the parties and would not cover or comprehend rights which are never in the minds of the parties at that time."As an authority for this proposition of law the High Court referred to the decision of this Court in Chinnathayi v. Kula - sekara, 1952 SCR 241 = (AIR 1952 SC 29 ) where this Court Observed"It is well settled that general words of release do not mean release of rights other than those then put up and have to be limited to the circumstances which were in the contemplation of the parties when it wag executed."7. The next question is whether Arumugam was a member of the joint family in 1946: if he was then as the High Court pointed out the legal consequence of the self-acquired property being converted into joint family property would follow regardless of Annavi Pillais intentions, It was not contended that even if Arumugam could not be said to have given up his right in the joint family property by the deed of release yet the execution of the deed by itself effected a division in status. The deed of release contains a statement that "as a result of lack of amity" between Arumugam and his father, the former had been residing separately for some time: that however does not establish that Arumugam had gone out of the joint family. Just as Rajagopal did not cease to be a member of the joint family when displeased with his conduct Annavi Pillai thought of disinheriting him by executing the Will on June 5, 1943. Subsequently, when the misunderstanding with Rajagona1 was removed, Annavi cancelled the Will by executing another deed on October 21. 1946. In this deed of cancellation (Ext. A-11) there is a statement to which we have referred above, suggesting that Annavi contemplated dividing the property among all his sons. This indicates that Arumugam was still considered as a member of the family. It has also been found that Arumugam came back to live with the other members of the family till 1954 when he died. It cannot therefore be said that Arumugam had ceased to be a member of the joint family in 1944 and it must be held that he had a share in the joint family property to which his widow became entitled on his death.
### Response:
0
### Explanation:
It was not contended that even if Arumugam could not be said to have given up his right in the joint family property by the deed of release yet the execution of the deed by itself effected a division in status. The deed of release contains a statement that "as a result of lack of amity" between Arumugam and his father, the former had been residing separately for some time: that however does not establish that Arumugam had gone out of the joint family. Just as Rajagopal did not cease to be a member of the joint family when displeased with his conduct Annavi Pillai thought of disinheriting him by executing the Will on June 5, 1943. Subsequently, when the misunderstanding with Rajagona1 was removed, Annavi cancelled the Will by executing another deed on October 21. 1946. In this deed of cancellation (Ext.there is a statement to which we have referred above, suggesting that Annavi contemplated dividing the property among all his sons. This indicates that Arumugam was still considered as a member of the family. It has also been found that Arumugam came back to live with the other members of the family till 1954 when he died. It cannot therefore be said that Arumugam had ceased to be a member of the joint family in 1944 and it must be held that he had a share in the joint family property to which his widow became entitled on his death.
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RITU MAHESHWARI Vs. M/S. PROMOTIONAL CLUB | it had a right to allotment. In holding otherwise, and proceeding to direct Noida to consider the clubs applications the impugned judgment erred in law. 20. The High Court had directed that the clubs applications should be considered in accordance with law. Noida proceeded to comply with that direction, and reinstate those applications- and, furthermore, consider them in accordance with the existing scheme. The High Court, in contempt proceedings, has taken exception to this course of action- in this courts opinion, in an entirely unnecessary and unwarranted manner. As held earlier, once the legality of closure of the old scheme was undisputed, there was no manner of right inhering with the club, to insist that its claim for any plot had to be considered. If at all, it ought to have applied under subsequent schemes, and waited like other applicants (of that scheme), Noidas interpretation of the High Courts judgment (to consider) in this context, was quite correct. Neither did Noida, in its announcement while closing the old scheme nor in any condition of the 2013 or later scheme, stipulate that old scheme applicants would be dealt with according to the terms of that (i.e. 2010) scheme. This meant that Noida had to consider the clubs applications, in accordance with terms of the prevailing scheme. It did so, and incurred – quite unjustifiably- the wrath of the High Court in contempt proceedings. There is authority for the proposition that when regulations or schemes, or policies change, applicants for their benefits have no inherent right to be considered under the old policy; rather the consideration has to be under the new regime, unless the latter contains an express stipulation to the contrary. 21. In Usman Gani Khatri of Bombay v Cantonment Board 1992 (3) SCR 1 this court affirmed the decision of the High Court, which held that old rules could not be applied, and that new rules were applicable, for considering applications for sanction of buildings. It was held that: In any case, the High Court is right in taking the view that the building plan can only be sanctioned according to the building regulations prevailing at the time of sanctioning of such building plans. At present the statutory bye-laws published on 30.4.1988 are in force and the fresh building plans to be submitted by the petitioners, if any, shall now be governed by these bye-laws and not by any other bye-laws or schemes which are no longer in force now. If we consider a reverse case where building regulations are amended more favourably to the builders before sanctioning of building plans already submitted, the builders would certainly claim and get advantage of the regulations amended to their benefit. Likewise, in Howrah Municipal Corpn. & Ors. v Ganges Rope Co. Ltd. & Ors [2003] Supp (6) SCR 1212. a similar question arose for consideration. The municipal corporation was required to decide an application for sanction, in a time bound manner, by the court. The applicable rules changed. The corporation decided the application in the light of the amended rules. This court, negativing the applicants contention that it had a right to be considered under the old rules, held as follows: 20. The provisions of the Act, therefore, contemplate an express sanction to be granted by the Corporation before any person can be allowed to construct or erect a building. Thus, in ordinary course, merely by submission of application for sanction for construction, no vested right is created in favour of any party by statutory operation of the provisions. In our considered opinion, by the order of the Court dated 23.12.1993 observing that the petitioner is not prevented from applying for further sanction of additional floors above fourth floor and the expectation expressed in the subsequent order of the Court dated 24.6.1994, from the Corporation to decide the pending application for sanction within four weeks, no vested right in favour of the respondent - company can be said to have been created to obtain sanction on the unamended rules, as they existed on the date of their second application. In the light of the above position in law, it is clear that the club could not have claimed that its application had to be dealt with in terms of the old scheme, which had ended in 2012. The direction of the High Court, could only have meant that the applications had to be revived, and dealt with the scheme prevailing as on the date of its consideration, i.e. after 31.07.2019. The interpretation placed by the High Court, that there were existing plots, which could have been dealt with under the old scheme is entirely misplaced. In such events, given that the legality of closure of the old scheme attained finality, there was no question of any land or plot being attached or belonging as it were to an old scheme. If any land or plot, or industrial unit were in fact left-over it was always up to the development authority or agency (here Noida) to determine how they are to be dealt with. The directions issued in contempt proceedings, which are subject matter of another appeal, are accordingly held erroneous. 22. As noticed earlier, the club was allotted a plot, in 2014; it paid substantial amounts. The area of that plot is 4000 square metres. Now, while it is true that this fact could not have been disclosed to the High Court, when filing the writ petition (in 2013), the club, in this courts opinion, had an obligation to disclose it, during the pendency of writ proceedings. This fact was material, given that the jurisdiction invoked is equitable and discretionary. Furthermore, whether the grievance was justified and well founded, given that state agencies develop and allot such industrial units at prices which are reasonable, and that an applicant subsequently succeeded in securing a plot, are relevant facts, which a court should be appraised of. The failure by the club, to do so, in this courts opinion, disentitled it to any relief. | 1[ds]17. The clubs grievance was that its application was not considered – its representatives were not interviewed. Noida pointed out that it closed or terminated the scheme. In the writ proceeding, the club did not challenge the closure of the scheme; rather its case was that Noidas omission to consider its application for allotment was arbitrary. Once the club accepted the closure of the scheme and did not challenge it, there was no question of its agitating any right or grievance regarding non-consideration of its application. The club does not deny that there were other registrants, similarly circumstanced, who did not secure any allotment. They presumably were treated in the same manner as the club was. In the circumstance, the club could not without establishing any discrimination, merely on the strength of closure of the scheme, allege arbitrariness. It is well established that when a policy decision like the closure or termination of a benefit available to a class of persons, is not challenged, the consequence of such closure (which is the impact on the pendency of those wishing to be considered) cannot ordinarily be subject matter of a grievance. What the club had was a right to be considered for allotment of the plots its applied for, so long as the old scheme subsisted.18. In the opinion of this court, an applicant or registrant of a scheme has no right to insist that they should be provided allotment under a scheme. Much depends on the terms of the scheme. In Delhi Development Authority vs. Pushpendra Kumar Jain 1994 (Supp3) SCR 770 this court had enunciated the applicable principle as follows:8. Now coming to the other ground, we are unable to find any legal basis for holding that the respondent obtained a vested right to allotment on the drawl of lots. Since D.D.A. is a public authority and because the number of applicants are always more than the number of flats available, the system of drawing of lots is being resorted to with a view to identify the allottee. It is only a mode, a method, a process to identify the allottee, i.e., it is a process of selection. It is not allotment by itself. Mere identification or selection of the allottee does not clothe the person selected with a legal right to allotment at the price prevailing on the date of drawl of lots. The scheme evolved by the appellant does not say so either expressly or by necessary implication. On the contrary, Clause (14) thereof says that the estimated prices mentioned in the brochure are illustrative and are subject to revision/modification depending upon the exigencies of lay out, cost of construction etc.19. In the absence of any ambiguity- in the law, and the scheme, the writ petitioner club, in this courts opinion could not have insisted that after the closure of the old scheme (which went unchallenged by it), nevertheless, it had a right to allotment. In holding otherwise, and proceeding to direct Noida to consider the clubs applications the impugned judgment erred in law.20. The High Court had directed that the clubs applications should be considered in accordance with law. Noida proceeded to comply with that direction, and reinstate those applications- and, furthermore, consider them in accordance with the existing scheme. The High Court, in contempt proceedings, has taken exception to this course of action- in this courts opinion, in an entirely unnecessary and unwarranted manner. As held earlier, once the legality of closure of the old scheme was undisputed, there was no manner of right inhering with the club, to insist that its claim for any plot had to be considered. If at all, it ought to have applied under subsequent schemes, and waited like other applicants (of that scheme), Noidas interpretation of the High Courts judgment (to consider) in this context, was quite correct. Neither did Noida, in its announcement while closing the old scheme nor in any condition of the 2013 or later scheme, stipulate that old scheme applicants would be dealt with according to the terms of that (i.e. 2010) scheme. This meant that Noida had to consider the clubs applications, in accordance with terms of the prevailing scheme. It did so, and incurred – quite unjustifiably- the wrath of the High Court in contempt proceedings. There is authority for the proposition that when regulations or schemes, or policies change, applicants for their benefits have no inherent right to be considered under the old policy; rather the consideration has to be under the new regime, unless the latter contains an express stipulation to the contrary.21. In Usman Gani Khatri of Bombay v Cantonment Board 1992 (3) SCR 1 this court affirmed the decision of the High Court, which held that old rules could not be applied, and that new rules were applicable, for considering applications for sanction of buildings. It was held that:In any case, the High Court is right in taking the view that the building plan can only be sanctioned according to the building regulations prevailing at the time of sanctioning of such building plans. At present the statutory bye-laws published on 30.4.1988 are in force and the fresh building plans to be submitted by the petitioners, if any, shall now be governed by these bye-laws and not by any other bye-laws or schemes which are no longer in force now.If we consider a reverse case where building regulations are amended more favourably to the builders before sanctioning of building plans already submitted, the builders would certainly claim and get advantage of the regulations amended to their benefit.Likewise, in Howrah Municipal Corpn. & Ors. v Ganges Rope Co. Ltd. & Ors [2003] Supp (6) SCR 1212. a similar question arose for consideration. The municipal corporation was required to decide an application for sanction, in a time bound manner, by the court. The applicable rules changed. The corporation decided the application in the light of the amended rules. This court, negativing the applicants contention that it had a right to be considered under the old rules, held as follows:20. The provisions of the Act, therefore, contemplate an express sanction to be granted by the Corporation before any person can be allowed to construct or erect a building. Thus, in ordinary course, merely by submission of application for sanction for construction, no vested right is created in favour of any party by statutory operation of the provisions.In our considered opinion, by the order of the Court dated 23.12.1993 observing that the petitioner is not prevented from applying for further sanction of additional floors above fourth floor and the expectation expressed in the subsequent order of the Court dated 24.6.1994, from the Corporation to decide the pending application for sanction within four weeks, no vested right in favour of the respondent - company can be said to have been created to obtain sanction on the unamended rules, as they existed on the date of their second application.In the light of the above position in law, it is clear that the club could not have claimed that its application had to be dealt with in terms of the old scheme, which had ended in 2012. The direction of the High Court, could only have meant that the applications had to be revived, and dealt with the scheme prevailing as on the date of its consideration, i.e. after 31.07.2019. The interpretation placed by the High Court, that there were existing plots, which could have been dealt with under the old scheme is entirely misplaced. In such events, given that the legality of closure of the old scheme attained finality, there was no question of any land or plot being attached or belonging as it were to an old scheme. If any land or plot, or industrial unit were in fact left-over it was always up to the development authority or agency (here Noida) to determine how they are to be dealt with. The directions issued in contempt proceedings, which are subject matter of another appeal, are accordingly held erroneous.22. As noticed earlier, the club was allotted a plot, in 2014; it paid substantial amounts. The area of that plot is 4000 square metres. Now, while it is true that this fact could not have been disclosed to the High Court, when filing the writ petition (in 2013), the club, in this courts opinion, had an obligation to disclose it, during the pendency of writ proceedings. This fact was material, given that the jurisdiction invoked is equitable and discretionary. Furthermore, whether the grievance was justified and well founded, given that state agencies develop and allot such industrial units at prices which are reasonable, and that an applicant subsequently succeeded in securing a plot, are relevant facts, which a court should be appraised of. The failure by the club, to do so, in this courts opinion, disentitled it to any relief. | 1 | 4,521 | 1,658 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
it had a right to allotment. In holding otherwise, and proceeding to direct Noida to consider the clubs applications the impugned judgment erred in law. 20. The High Court had directed that the clubs applications should be considered in accordance with law. Noida proceeded to comply with that direction, and reinstate those applications- and, furthermore, consider them in accordance with the existing scheme. The High Court, in contempt proceedings, has taken exception to this course of action- in this courts opinion, in an entirely unnecessary and unwarranted manner. As held earlier, once the legality of closure of the old scheme was undisputed, there was no manner of right inhering with the club, to insist that its claim for any plot had to be considered. If at all, it ought to have applied under subsequent schemes, and waited like other applicants (of that scheme), Noidas interpretation of the High Courts judgment (to consider) in this context, was quite correct. Neither did Noida, in its announcement while closing the old scheme nor in any condition of the 2013 or later scheme, stipulate that old scheme applicants would be dealt with according to the terms of that (i.e. 2010) scheme. This meant that Noida had to consider the clubs applications, in accordance with terms of the prevailing scheme. It did so, and incurred – quite unjustifiably- the wrath of the High Court in contempt proceedings. There is authority for the proposition that when regulations or schemes, or policies change, applicants for their benefits have no inherent right to be considered under the old policy; rather the consideration has to be under the new regime, unless the latter contains an express stipulation to the contrary. 21. In Usman Gani Khatri of Bombay v Cantonment Board 1992 (3) SCR 1 this court affirmed the decision of the High Court, which held that old rules could not be applied, and that new rules were applicable, for considering applications for sanction of buildings. It was held that: In any case, the High Court is right in taking the view that the building plan can only be sanctioned according to the building regulations prevailing at the time of sanctioning of such building plans. At present the statutory bye-laws published on 30.4.1988 are in force and the fresh building plans to be submitted by the petitioners, if any, shall now be governed by these bye-laws and not by any other bye-laws or schemes which are no longer in force now. If we consider a reverse case where building regulations are amended more favourably to the builders before sanctioning of building plans already submitted, the builders would certainly claim and get advantage of the regulations amended to their benefit. Likewise, in Howrah Municipal Corpn. & Ors. v Ganges Rope Co. Ltd. & Ors [2003] Supp (6) SCR 1212. a similar question arose for consideration. The municipal corporation was required to decide an application for sanction, in a time bound manner, by the court. The applicable rules changed. The corporation decided the application in the light of the amended rules. This court, negativing the applicants contention that it had a right to be considered under the old rules, held as follows: 20. The provisions of the Act, therefore, contemplate an express sanction to be granted by the Corporation before any person can be allowed to construct or erect a building. Thus, in ordinary course, merely by submission of application for sanction for construction, no vested right is created in favour of any party by statutory operation of the provisions. In our considered opinion, by the order of the Court dated 23.12.1993 observing that the petitioner is not prevented from applying for further sanction of additional floors above fourth floor and the expectation expressed in the subsequent order of the Court dated 24.6.1994, from the Corporation to decide the pending application for sanction within four weeks, no vested right in favour of the respondent - company can be said to have been created to obtain sanction on the unamended rules, as they existed on the date of their second application. In the light of the above position in law, it is clear that the club could not have claimed that its application had to be dealt with in terms of the old scheme, which had ended in 2012. The direction of the High Court, could only have meant that the applications had to be revived, and dealt with the scheme prevailing as on the date of its consideration, i.e. after 31.07.2019. The interpretation placed by the High Court, that there were existing plots, which could have been dealt with under the old scheme is entirely misplaced. In such events, given that the legality of closure of the old scheme attained finality, there was no question of any land or plot being attached or belonging as it were to an old scheme. If any land or plot, or industrial unit were in fact left-over it was always up to the development authority or agency (here Noida) to determine how they are to be dealt with. The directions issued in contempt proceedings, which are subject matter of another appeal, are accordingly held erroneous. 22. As noticed earlier, the club was allotted a plot, in 2014; it paid substantial amounts. The area of that plot is 4000 square metres. Now, while it is true that this fact could not have been disclosed to the High Court, when filing the writ petition (in 2013), the club, in this courts opinion, had an obligation to disclose it, during the pendency of writ proceedings. This fact was material, given that the jurisdiction invoked is equitable and discretionary. Furthermore, whether the grievance was justified and well founded, given that state agencies develop and allot such industrial units at prices which are reasonable, and that an applicant subsequently succeeded in securing a plot, are relevant facts, which a court should be appraised of. The failure by the club, to do so, in this courts opinion, disentitled it to any relief.
### Response:
1
### Explanation:
scheme (which went unchallenged by it), nevertheless, it had a right to allotment. In holding otherwise, and proceeding to direct Noida to consider the clubs applications the impugned judgment erred in law.20. The High Court had directed that the clubs applications should be considered in accordance with law. Noida proceeded to comply with that direction, and reinstate those applications- and, furthermore, consider them in accordance with the existing scheme. The High Court, in contempt proceedings, has taken exception to this course of action- in this courts opinion, in an entirely unnecessary and unwarranted manner. As held earlier, once the legality of closure of the old scheme was undisputed, there was no manner of right inhering with the club, to insist that its claim for any plot had to be considered. If at all, it ought to have applied under subsequent schemes, and waited like other applicants (of that scheme), Noidas interpretation of the High Courts judgment (to consider) in this context, was quite correct. Neither did Noida, in its announcement while closing the old scheme nor in any condition of the 2013 or later scheme, stipulate that old scheme applicants would be dealt with according to the terms of that (i.e. 2010) scheme. This meant that Noida had to consider the clubs applications, in accordance with terms of the prevailing scheme. It did so, and incurred – quite unjustifiably- the wrath of the High Court in contempt proceedings. There is authority for the proposition that when regulations or schemes, or policies change, applicants for their benefits have no inherent right to be considered under the old policy; rather the consideration has to be under the new regime, unless the latter contains an express stipulation to the contrary.21. In Usman Gani Khatri of Bombay v Cantonment Board 1992 (3) SCR 1 this court affirmed the decision of the High Court, which held that old rules could not be applied, and that new rules were applicable, for considering applications for sanction of buildings. It was held that:In any case, the High Court is right in taking the view that the building plan can only be sanctioned according to the building regulations prevailing at the time of sanctioning of such building plans. At present the statutory bye-laws published on 30.4.1988 are in force and the fresh building plans to be submitted by the petitioners, if any, shall now be governed by these bye-laws and not by any other bye-laws or schemes which are no longer in force now.If we consider a reverse case where building regulations are amended more favourably to the builders before sanctioning of building plans already submitted, the builders would certainly claim and get advantage of the regulations amended to their benefit.Likewise, in Howrah Municipal Corpn. & Ors. v Ganges Rope Co. Ltd. & Ors [2003] Supp (6) SCR 1212. a similar question arose for consideration. The municipal corporation was required to decide an application for sanction, in a time bound manner, by the court. The applicable rules changed. The corporation decided the application in the light of the amended rules. This court, negativing the applicants contention that it had a right to be considered under the old rules, held as follows:20. The provisions of the Act, therefore, contemplate an express sanction to be granted by the Corporation before any person can be allowed to construct or erect a building. Thus, in ordinary course, merely by submission of application for sanction for construction, no vested right is created in favour of any party by statutory operation of the provisions.In our considered opinion, by the order of the Court dated 23.12.1993 observing that the petitioner is not prevented from applying for further sanction of additional floors above fourth floor and the expectation expressed in the subsequent order of the Court dated 24.6.1994, from the Corporation to decide the pending application for sanction within four weeks, no vested right in favour of the respondent - company can be said to have been created to obtain sanction on the unamended rules, as they existed on the date of their second application.In the light of the above position in law, it is clear that the club could not have claimed that its application had to be dealt with in terms of the old scheme, which had ended in 2012. The direction of the High Court, could only have meant that the applications had to be revived, and dealt with the scheme prevailing as on the date of its consideration, i.e. after 31.07.2019. The interpretation placed by the High Court, that there were existing plots, which could have been dealt with under the old scheme is entirely misplaced. In such events, given that the legality of closure of the old scheme attained finality, there was no question of any land or plot being attached or belonging as it were to an old scheme. If any land or plot, or industrial unit were in fact left-over it was always up to the development authority or agency (here Noida) to determine how they are to be dealt with. The directions issued in contempt proceedings, which are subject matter of another appeal, are accordingly held erroneous.22. As noticed earlier, the club was allotted a plot, in 2014; it paid substantial amounts. The area of that plot is 4000 square metres. Now, while it is true that this fact could not have been disclosed to the High Court, when filing the writ petition (in 2013), the club, in this courts opinion, had an obligation to disclose it, during the pendency of writ proceedings. This fact was material, given that the jurisdiction invoked is equitable and discretionary. Furthermore, whether the grievance was justified and well founded, given that state agencies develop and allot such industrial units at prices which are reasonable, and that an applicant subsequently succeeded in securing a plot, are relevant facts, which a court should be appraised of. The failure by the club, to do so, in this courts opinion, disentitled it to any relief.
|
R. Narayanan Vs. S. Semmalai & Others | unreasonable demands for recount. Malafide aspersions on counting staff or false and untenable objections regarding validity of votes also fall under the same category. We mean to be illustrative, not exhaustive, but underline the need, in appropriate case, to be reasonably liberal in re- check and re-count by Returning Officers. After all, fairness at the polls must not only be manifest but misgiving about the process must be erased at the earliest. Indeed, the Instructions to Officers are fairly clear and lay down sound guidelines. 23. Reliance was placed by the High Court on an observation of Krishna Iyer, J. in this case that where the margin of difference is minimal the claim for the fresh poll cannot be summarily brushed aside. In the first place, this observation was really meant for the Returning Officer because at the time when request for re-count to the Returning Officer is made the electoral process is still continuing and if there are any counting errors they can be rectified before the election process is complete. This however cannot apply to the Court while dealing with an election petition because if a re-count is ordered at that stage then the electoral process has to be restarted afresh. In our country the election is an extremely expensive process and unless very clear case for recount is made out the candidates should not be put to unnecessary trouble and expense. Moreover, in the case of Ram Autar Singh Bhadauria v. Ram Gopal Singh &Ors.(1) this Court to which Krishna Iyer, J. himself was a party observed: The above being the law on the point, it is clear that the learned Judge was in error in ordering general inspection and recount of the total votes polled at the election, merely because in these Additional Pleas the returned candidate also had by way of recrimination, complained of wrong reception an d rejection of votes and wrong counting of votes. The pleas at this stage could not be investigated even in the recriminatory petition filed by the returned candidate. They were beyond the scope of the enquiry into the petitioners case which (as set up in Para 11 of the Petition) fell under s.100(1) (d) (iii) of the Act. 24. Similarly in the case of Chanda Singh v. Choudhary Shiv Ram Verma(2) this Court observed as follows:- A democracy runs smooth on the wheels of periodic and pure elections. The verdict at the polls announced by the Returning Officers lead to the formation of Governments. A certain amount of stability in the electoral process is essential. If the counting of the ballots are interfered with by too frequent and flippant recounts by courts a new system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying, if recount of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as h ere, to ask for a recount. Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the Court restricts recourse to recount to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step. 25. In the case of Beliram Bhalaik v. Jai Beharilal Khachi and Anr.(1) this Court again reiterated the same principles in the following words:- A whimsical and bald statement of the candidate that he is not satisfied with the counting is not tantamount to a statement of the grounds within the contemplation of Rule 63(2). The application was thus not a proper application in the eye of law. It was not supplemented even by an antecedent or contemporaneous oral statement of the author or any of his agents with regard to any irregularities in the counting. It was liable to be rejected summarily under sub-rule (3) of Rule 63 also. Although no cast-iron rule of universal application can be or has been laid down, yet from a breadroll of the decisions of this court two broad guidelines are discernible; that the co urt would be justified in ordering a recount or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of irregularity or illegality in counting are founded, are plead ed adequately in the election petition, and (ii) the Court/Tribunal trying the petition is prima facie satisfied that the making of such and order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. 26. Finally, the entire case law on the subject regarding the circumstances under which re-count could be ordered was fully summarised and catalogued by this Court in the case of Bhabhi v. Sheo Govind &Ors. (2) to which one of us (Fazal Ali, J.) was a party and which may be extracted thus:- The Court would be justified in ordering a recount of the ballot papers only where: (1) The election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded; (2) On the basis of evidence adduced such allegation s are prima facie established, affording a good ground for believing that there has been a mistake in counting; and (3) The court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. 27. Thus, on a consideration of the principles deduced from the authorities mentioned above and the evidence led in this case by the parties, we are satisfied that this was not a case in which a re-count should have been ordered by the learned Judge. 28. | 1[ds]In the first place the finding itself is based purely on speculation. It is obvious that election being a technical matter the authorities choose experienced persons to do the counting and take every possible care to see that the members of the staff do not commit any error. Moreover, the relief ofg cannot be accepted merely on the possibility of their being an error. It isd that such allegations must not only be clearly made but also proved by cogent evidence. The Judge himself holds that the respondent has not established any specific ins tance of erroneous sorting and that the allegations made in the pleadings as well as in the evidence are general yet he accepts the case of the respondent on such insufficient and infirm evidence. Moreover, it would appear from the evidence of P.W. 23 the witness for the respondent that the first round started at 5 p.m. and ended at about 8.30 p.m., the second round started at 9 p.m. and ended at 11.30 p.m. and the third round started at 12ended at 2 a.m. The witness w as asked inn whether he had complained to the counting staff at the spot and the witness admitted that when he pointed out the mistake it was rectified by the counting staff. From the timings of the rounds it appears that there were sufficient intervals between the three rounds, and, therefore, the question of the staff being tired and exhausted did not arise. This finding of the learned Judge, therefore, is against the weight of evidence and cannot be legally supported. Moreover, as we have already pointed out that recount should be ordered not on possibility of errors but when the matter is proved with absolute certainty. Similarly, the learned Judge speculates that there must have been lot of physical exertion and observedt is not possible to exclude the possibility of physical exertion on the part of the counting staff especially after midnight when the third round of counting took place. Having regard to the minimal difference in votes it has become necessary to find outwhether the third round of counting was carried on by the counting staff properly.In the nature of things it is not possible to assume that all the 7 2 persons were alert and attended to the process of counting with such keenness as it deservedThis finding is also based on pure speculation and cannot be maintainedLastly, the learned Judge was greatly influenced by the fact that the margin by which the appellant succeeded was very narrow. This was undoubtedly an important factor to be considered but would not by itself vitiate the counting of votes or justifyIt would thus be seen that all the three grounds taken by the respondent before the Returning Officer were absolutely vague and could not make out a case forg by the Returning Offic er much less by the court. It may be relevant to note that in the application filed by the respondent the question that the appellant succeeded by a narrow margin was also not mentionedThus, on a consideration of the principles deduced from the authorities mentioned above and the evidence led in this case by the parties, we are satisfied that this was not a case in which ashould have been ordered by the learned JudgeThe law on the subject is absolutely clear and while the learned Judge had relied on some of the decisions of this Court he has failed to apply them correctly to the facts and circumstances of this caseIn the first place, this observation was really meant for the Returning Officer because at the time when request forthe Returning Officer is made the electoral process is still continuing and if there are any counting errors they can be rectified before the election process is complete. This however cannot apply to the Court while dealing with an election petition because if aordered at that stage then the electoral process has to be restarted afresh. In our country the election is an extremely expensive process and unless very clear case for recount is made out the candidates should not be put to unnecessary trouble and expense. | 1 | 5,989 | 732 | ### 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:
unreasonable demands for recount. Malafide aspersions on counting staff or false and untenable objections regarding validity of votes also fall under the same category. We mean to be illustrative, not exhaustive, but underline the need, in appropriate case, to be reasonably liberal in re- check and re-count by Returning Officers. After all, fairness at the polls must not only be manifest but misgiving about the process must be erased at the earliest. Indeed, the Instructions to Officers are fairly clear and lay down sound guidelines. 23. Reliance was placed by the High Court on an observation of Krishna Iyer, J. in this case that where the margin of difference is minimal the claim for the fresh poll cannot be summarily brushed aside. In the first place, this observation was really meant for the Returning Officer because at the time when request for re-count to the Returning Officer is made the electoral process is still continuing and if there are any counting errors they can be rectified before the election process is complete. This however cannot apply to the Court while dealing with an election petition because if a re-count is ordered at that stage then the electoral process has to be restarted afresh. In our country the election is an extremely expensive process and unless very clear case for recount is made out the candidates should not be put to unnecessary trouble and expense. Moreover, in the case of Ram Autar Singh Bhadauria v. Ram Gopal Singh &Ors.(1) this Court to which Krishna Iyer, J. himself was a party observed: The above being the law on the point, it is clear that the learned Judge was in error in ordering general inspection and recount of the total votes polled at the election, merely because in these Additional Pleas the returned candidate also had by way of recrimination, complained of wrong reception an d rejection of votes and wrong counting of votes. The pleas at this stage could not be investigated even in the recriminatory petition filed by the returned candidate. They were beyond the scope of the enquiry into the petitioners case which (as set up in Para 11 of the Petition) fell under s.100(1) (d) (iii) of the Act. 24. Similarly in the case of Chanda Singh v. Choudhary Shiv Ram Verma(2) this Court observed as follows:- A democracy runs smooth on the wheels of periodic and pure elections. The verdict at the polls announced by the Returning Officers lead to the formation of Governments. A certain amount of stability in the electoral process is essential. If the counting of the ballots are interfered with by too frequent and flippant recounts by courts a new system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying, if recount of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as h ere, to ask for a recount. Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the Court restricts recourse to recount to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step. 25. In the case of Beliram Bhalaik v. Jai Beharilal Khachi and Anr.(1) this Court again reiterated the same principles in the following words:- A whimsical and bald statement of the candidate that he is not satisfied with the counting is not tantamount to a statement of the grounds within the contemplation of Rule 63(2). The application was thus not a proper application in the eye of law. It was not supplemented even by an antecedent or contemporaneous oral statement of the author or any of his agents with regard to any irregularities in the counting. It was liable to be rejected summarily under sub-rule (3) of Rule 63 also. Although no cast-iron rule of universal application can be or has been laid down, yet from a breadroll of the decisions of this court two broad guidelines are discernible; that the co urt would be justified in ordering a recount or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of irregularity or illegality in counting are founded, are plead ed adequately in the election petition, and (ii) the Court/Tribunal trying the petition is prima facie satisfied that the making of such and order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. 26. Finally, the entire case law on the subject regarding the circumstances under which re-count could be ordered was fully summarised and catalogued by this Court in the case of Bhabhi v. Sheo Govind &Ors. (2) to which one of us (Fazal Ali, J.) was a party and which may be extracted thus:- The Court would be justified in ordering a recount of the ballot papers only where: (1) The election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded; (2) On the basis of evidence adduced such allegation s are prima facie established, affording a good ground for believing that there has been a mistake in counting; and (3) The court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. 27. Thus, on a consideration of the principles deduced from the authorities mentioned above and the evidence led in this case by the parties, we are satisfied that this was not a case in which a re-count should have been ordered by the learned Judge. 28.
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1
### Explanation:
In the first place the finding itself is based purely on speculation. It is obvious that election being a technical matter the authorities choose experienced persons to do the counting and take every possible care to see that the members of the staff do not commit any error. Moreover, the relief ofg cannot be accepted merely on the possibility of their being an error. It isd that such allegations must not only be clearly made but also proved by cogent evidence. The Judge himself holds that the respondent has not established any specific ins tance of erroneous sorting and that the allegations made in the pleadings as well as in the evidence are general yet he accepts the case of the respondent on such insufficient and infirm evidence. Moreover, it would appear from the evidence of P.W. 23 the witness for the respondent that the first round started at 5 p.m. and ended at about 8.30 p.m., the second round started at 9 p.m. and ended at 11.30 p.m. and the third round started at 12ended at 2 a.m. The witness w as asked inn whether he had complained to the counting staff at the spot and the witness admitted that when he pointed out the mistake it was rectified by the counting staff. From the timings of the rounds it appears that there were sufficient intervals between the three rounds, and, therefore, the question of the staff being tired and exhausted did not arise. This finding of the learned Judge, therefore, is against the weight of evidence and cannot be legally supported. Moreover, as we have already pointed out that recount should be ordered not on possibility of errors but when the matter is proved with absolute certainty. Similarly, the learned Judge speculates that there must have been lot of physical exertion and observedt is not possible to exclude the possibility of physical exertion on the part of the counting staff especially after midnight when the third round of counting took place. Having regard to the minimal difference in votes it has become necessary to find outwhether the third round of counting was carried on by the counting staff properly.In the nature of things it is not possible to assume that all the 7 2 persons were alert and attended to the process of counting with such keenness as it deservedThis finding is also based on pure speculation and cannot be maintainedLastly, the learned Judge was greatly influenced by the fact that the margin by which the appellant succeeded was very narrow. This was undoubtedly an important factor to be considered but would not by itself vitiate the counting of votes or justifyIt would thus be seen that all the three grounds taken by the respondent before the Returning Officer were absolutely vague and could not make out a case forg by the Returning Offic er much less by the court. It may be relevant to note that in the application filed by the respondent the question that the appellant succeeded by a narrow margin was also not mentionedThus, on a consideration of the principles deduced from the authorities mentioned above and the evidence led in this case by the parties, we are satisfied that this was not a case in which ashould have been ordered by the learned JudgeThe law on the subject is absolutely clear and while the learned Judge had relied on some of the decisions of this Court he has failed to apply them correctly to the facts and circumstances of this caseIn the first place, this observation was really meant for the Returning Officer because at the time when request forthe Returning Officer is made the electoral process is still continuing and if there are any counting errors they can be rectified before the election process is complete. This however cannot apply to the Court while dealing with an election petition because if aordered at that stage then the electoral process has to be restarted afresh. In our country the election is an extremely expensive process and unless very clear case for recount is made out the candidates should not be put to unnecessary trouble and expense.
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Arati Durgaram Gavandi Vs. Managing Director, Tata Metaliks Limited & Others | work places or other institutions. These norms and guidelines shall continue to hold the field until legislation is enacted. The Supreme Court directed that these guidelines and norms be treated as law declared by the Court under Article 141 of the Constitution of India. 8. The guidelines formulated in the judgment of the Supreme Court in Vishaka begin with the following prefatory statement: It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women. Clause 1 of the guidelines imposes a duty upon the employer and other responsible persons in work places to prevent or deter the commission of acts of sexual harassment and to provide procedures for resolution, settlement or prosecution of acts of sexual harassment by taking all steps required. Clause 2 of the guidelines defines the expression sexual harassment. Clause 3 requires all employers or persons incharge of work places whether in the public or private sectors to take appropriate steps to prevent sexual harassment. This includes, under clause 4, criminal proceedings and under clause 5, disciplinary action. Clause 6 of the guidelines provided for a complaint mechanism and clause 7 elaborates upon the constitution of a Complaints Committee: 6. Complaint Mechanism:Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employers organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints. 7. Complaints Committee: The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party either NGO or other body who is familiar with the issue of sexual harassment. (emphasis supplied). 9. The judgment in Vishaka contains a specific direction that the guidelines and norms set out therein would be strictly observed at all work places for the preservation and enforcement of a right to gender equality of all working women. The Supreme Court has held that its directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field. 10. The right to gender equality is intrinsic to the right to life under Article 21 of the Constitution. The right to life comprehends the right to live with dignity. An affront to or the invasion of gender is destructive of the right of every woman to live with dignity. Article 15 of the Constitution which contains a prohibition inter alia against discrimination by the State on the ground of sex is an emanation of that right. The provisions of the Constitution recognize gender equality as a fundamental right. Gender equality in all its dimensions is a basic human right which is recognized by and embodied in the provisions of the Constitution. The broad sweep of the human right to gender equality traverses every facet of the position of a woman in society. The right comprehends the preservation of the dignity of women. At a basic level, gender equality postulates protection of women against all those practices which invade upon the dignity of being and the privacy of the person. A dignified existence includes the right to earn ones livelihood in conditions that are fair and gender neutral. A condition which operates to disadvantage a woman worker on the ground of gender is fundamentally anachronistic to the vision of our constitutional order. Gender as a concept has wider dimensions than sex. Gender equality postulates the realization of societal values that travel beyond a mere notion of sexual equality. Gender in that sense denotes the realization of every facet of personality that contributes to the fullness of life to which a woman is entitled. 11. Every employer in the territory of India is bound to abide by the judgment of the Supreme Court, which is law under Article 141 of the Constitution. In the present case, the affidavit in reply which has been filed on behalf of the management shows that an Advocate was appointed as an Enquiry Officer to probe into the allegations which the Petitioner had made of the violation of her human right to gender equality. Appointing an Advocate as an Enquiry Officer does not constitute valid or adequate compliance with the judgment of the Supreme Court. The mandate of the law laid down by the Supreme Court is that an employer at the work place must constitute a complaints mechanism to deal with complaints of victims. The Supreme Court directed that the complaint mechanism should be adequate to provide a Complaint Committee, a special counsellor or other support service including the maintenance of confidentiality. The Complaint Committee is required to be headed by a woman and not less than half of its members are required to be women. The Complaints Committee has to involve a third party either an NGO or any other body which is conversant with the issues which arise in matters of sexual harassment. The management in the present case is in breach of its obligation. The complaint of the Petitioner ought to have been referred to a Complaints Committee as directed in Vishaka. If a Complaints Committee has not been constituted, it ought to have been constituted in accordance with the directions of the Supreme Court. It was no part of the function of the management to determine whether the complaint was genuine or otherwise and the efforts made in the affidavit to demonstrate that the complaint was made for the first time on 31st August 2004 is an encroachment on the jurisdiction which is vested in the complaints mechanism by the judgment of the Supreme Court. | 1[ds]7. In Vishaka (supra), the Supreme Court held that gender equality includes protection from sexual harassment and the right to work with dignity, which is a universally recognized basic human right. (Paragraph 10) The Supreme Court noted that there was a global acceptance by International Conventions of the common minimum requirements of this right. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) requires all States who are parties thereto to take appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular, (a) The right to work as an inalienable right of all human beings; and (b) The right to protection of health and safety in working conditions. The Convention takes note of the fact that equality in employment can be seriously impaired when women are subjected to gender specific violence such as sexual harassment in the work place. The Convention was ratified by the Government of India on 25th June 1993. The Supreme Court held that the constitutional guarantee of gender equality in Article 15 must be construed in the context of the obligation assumed by India as a party to the Convention. The Supreme Court held that in the absence of legislation enacted to enforce the basic human right to gender equality and the guarantee against sexual harassment, more particularly against sexual harassment at the work place, the Court was laying down guidelines and norms for due observance at all work places or other institutions. These norms and guidelines shall continue to hold the field until legislation is enacted. The Supreme Court directed that these guidelines and norms be treated as law declared by the Court under Article 141 of the Constitution of India.The judgment in Vishaka contains a specific direction that the guidelines and norms set out therein would be strictly observed at all work places for the preservation and enforcement of a right to gender equality of all working women. The Supreme Court has held that its directions would be binding and enforceable in law until suitable legislation is enacted to occupy thedignified existence includes the right to earn ones livelihood in conditions that are fair and gender neutral. A condition which operates to disadvantage a woman worker on the ground of gender is fundamentally anachronistic to the vision of our constitutional order. Gender as a concept has wider dimensions than sex. Gender equality postulates the realization of societal values that travel beyond a mere notion of sexual equality. Gender in that sense denotes the realization of every facet of personality that contributes to the fullness of life to which a woman is entitled.Every employer in the territory of India is bound to abide by the judgment of the Supreme Court, which is law under Article 141 of the Constitution. In the present case, the affidavit in reply which has been filed on behalf of the management shows that an Advocate was appointed as an Enquiry Officer to probe into the allegations which the Petitioner had made of the violation of her human right to gender equality. Appointing an Advocate as an Enquiry Officer does not constitute valid or adequate compliance with the judgment of the Supreme Court. The mandate of the law laid down by the Supreme Court is that an employer at the work place must constitute a complaints mechanism to deal with complaints of victims. The Supreme Court directed that the complaint mechanism should be adequate to provide a Complaint Committee, a special counsellor or other support service including the maintenance of confidentiality. The Complaint Committee is required to be headed by a woman and not less than half of its members are required to be women. The Complaints Committee has to involve a third partyeither an NGO or any other body which is conversant with the issues which arise in matters of sexual harassment. The management in the present case is in breach of its obligation. The complaint of the Petitioner ought to have been referred to a Complaints Committee as directed in Vishaka. If a Complaints Committee has not been constituted, it ought to have been constituted in accordance with the directions of the Supreme Court. It was no part of the function of the management to determine whether the complaint was genuine or otherwise and the efforts made in the affidavit to demonstrate that the complaint was made for the first time on 31st August 2004 is an encroachment on the jurisdiction which is vested in the complaints mechanism by the judgment of the Supreme Court. | 1 | 2,726 | 822 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
work places or other institutions. These norms and guidelines shall continue to hold the field until legislation is enacted. The Supreme Court directed that these guidelines and norms be treated as law declared by the Court under Article 141 of the Constitution of India. 8. The guidelines formulated in the judgment of the Supreme Court in Vishaka begin with the following prefatory statement: It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women. Clause 1 of the guidelines imposes a duty upon the employer and other responsible persons in work places to prevent or deter the commission of acts of sexual harassment and to provide procedures for resolution, settlement or prosecution of acts of sexual harassment by taking all steps required. Clause 2 of the guidelines defines the expression sexual harassment. Clause 3 requires all employers or persons incharge of work places whether in the public or private sectors to take appropriate steps to prevent sexual harassment. This includes, under clause 4, criminal proceedings and under clause 5, disciplinary action. Clause 6 of the guidelines provided for a complaint mechanism and clause 7 elaborates upon the constitution of a Complaints Committee: 6. Complaint Mechanism:Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employers organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints. 7. Complaints Committee: The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party either NGO or other body who is familiar with the issue of sexual harassment. (emphasis supplied). 9. The judgment in Vishaka contains a specific direction that the guidelines and norms set out therein would be strictly observed at all work places for the preservation and enforcement of a right to gender equality of all working women. The Supreme Court has held that its directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field. 10. The right to gender equality is intrinsic to the right to life under Article 21 of the Constitution. The right to life comprehends the right to live with dignity. An affront to or the invasion of gender is destructive of the right of every woman to live with dignity. Article 15 of the Constitution which contains a prohibition inter alia against discrimination by the State on the ground of sex is an emanation of that right. The provisions of the Constitution recognize gender equality as a fundamental right. Gender equality in all its dimensions is a basic human right which is recognized by and embodied in the provisions of the Constitution. The broad sweep of the human right to gender equality traverses every facet of the position of a woman in society. The right comprehends the preservation of the dignity of women. At a basic level, gender equality postulates protection of women against all those practices which invade upon the dignity of being and the privacy of the person. A dignified existence includes the right to earn ones livelihood in conditions that are fair and gender neutral. A condition which operates to disadvantage a woman worker on the ground of gender is fundamentally anachronistic to the vision of our constitutional order. Gender as a concept has wider dimensions than sex. Gender equality postulates the realization of societal values that travel beyond a mere notion of sexual equality. Gender in that sense denotes the realization of every facet of personality that contributes to the fullness of life to which a woman is entitled. 11. Every employer in the territory of India is bound to abide by the judgment of the Supreme Court, which is law under Article 141 of the Constitution. In the present case, the affidavit in reply which has been filed on behalf of the management shows that an Advocate was appointed as an Enquiry Officer to probe into the allegations which the Petitioner had made of the violation of her human right to gender equality. Appointing an Advocate as an Enquiry Officer does not constitute valid or adequate compliance with the judgment of the Supreme Court. The mandate of the law laid down by the Supreme Court is that an employer at the work place must constitute a complaints mechanism to deal with complaints of victims. The Supreme Court directed that the complaint mechanism should be adequate to provide a Complaint Committee, a special counsellor or other support service including the maintenance of confidentiality. The Complaint Committee is required to be headed by a woman and not less than half of its members are required to be women. The Complaints Committee has to involve a third party either an NGO or any other body which is conversant with the issues which arise in matters of sexual harassment. The management in the present case is in breach of its obligation. The complaint of the Petitioner ought to have been referred to a Complaints Committee as directed in Vishaka. If a Complaints Committee has not been constituted, it ought to have been constituted in accordance with the directions of the Supreme Court. It was no part of the function of the management to determine whether the complaint was genuine or otherwise and the efforts made in the affidavit to demonstrate that the complaint was made for the first time on 31st August 2004 is an encroachment on the jurisdiction which is vested in the complaints mechanism by the judgment of the Supreme Court.
### Response:
1
### Explanation:
7. In Vishaka (supra), the Supreme Court held that gender equality includes protection from sexual harassment and the right to work with dignity, which is a universally recognized basic human right. (Paragraph 10) The Supreme Court noted that there was a global acceptance by International Conventions of the common minimum requirements of this right. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) requires all States who are parties thereto to take appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular, (a) The right to work as an inalienable right of all human beings; and (b) The right to protection of health and safety in working conditions. The Convention takes note of the fact that equality in employment can be seriously impaired when women are subjected to gender specific violence such as sexual harassment in the work place. The Convention was ratified by the Government of India on 25th June 1993. The Supreme Court held that the constitutional guarantee of gender equality in Article 15 must be construed in the context of the obligation assumed by India as a party to the Convention. The Supreme Court held that in the absence of legislation enacted to enforce the basic human right to gender equality and the guarantee against sexual harassment, more particularly against sexual harassment at the work place, the Court was laying down guidelines and norms for due observance at all work places or other institutions. These norms and guidelines shall continue to hold the field until legislation is enacted. The Supreme Court directed that these guidelines and norms be treated as law declared by the Court under Article 141 of the Constitution of India.The judgment in Vishaka contains a specific direction that the guidelines and norms set out therein would be strictly observed at all work places for the preservation and enforcement of a right to gender equality of all working women. The Supreme Court has held that its directions would be binding and enforceable in law until suitable legislation is enacted to occupy thedignified existence includes the right to earn ones livelihood in conditions that are fair and gender neutral. A condition which operates to disadvantage a woman worker on the ground of gender is fundamentally anachronistic to the vision of our constitutional order. Gender as a concept has wider dimensions than sex. Gender equality postulates the realization of societal values that travel beyond a mere notion of sexual equality. Gender in that sense denotes the realization of every facet of personality that contributes to the fullness of life to which a woman is entitled.Every employer in the territory of India is bound to abide by the judgment of the Supreme Court, which is law under Article 141 of the Constitution. In the present case, the affidavit in reply which has been filed on behalf of the management shows that an Advocate was appointed as an Enquiry Officer to probe into the allegations which the Petitioner had made of the violation of her human right to gender equality. Appointing an Advocate as an Enquiry Officer does not constitute valid or adequate compliance with the judgment of the Supreme Court. The mandate of the law laid down by the Supreme Court is that an employer at the work place must constitute a complaints mechanism to deal with complaints of victims. The Supreme Court directed that the complaint mechanism should be adequate to provide a Complaint Committee, a special counsellor or other support service including the maintenance of confidentiality. The Complaint Committee is required to be headed by a woman and not less than half of its members are required to be women. The Complaints Committee has to involve a third partyeither an NGO or any other body which is conversant with the issues which arise in matters of sexual harassment. The management in the present case is in breach of its obligation. The complaint of the Petitioner ought to have been referred to a Complaints Committee as directed in Vishaka. If a Complaints Committee has not been constituted, it ought to have been constituted in accordance with the directions of the Supreme Court. It was no part of the function of the management to determine whether the complaint was genuine or otherwise and the efforts made in the affidavit to demonstrate that the complaint was made for the first time on 31st August 2004 is an encroachment on the jurisdiction which is vested in the complaints mechanism by the judgment of the Supreme Court.
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Hiralal Patni Vs. Loonkaram Sethiya & Others | to the suit and the court, through the Receiver took possession of the mill and thereafter the Receiver, during the course of the administration of the property, under a compromise arrangement for running the mills leased out the flour mill to the appellant with an express condition that the appellant should redeliver the property to the Receiver on the expiry of the lease. Admittedly the term of the lease had expired, and the court directed the Receiver to take possession of the mill. The court, in our view, was legally competent to confer a power on the Receiver under Order XL, R. 1 (1)(d), of the Code of Civil Procedure to recover the property from the appellant.14. The decisions cited at the Bar are not of much relevance to the present case. Krista Chandra Ghose v. Krista Sakcha Ghose, ILR 36 Cal 52 is a case where a lease was granted by a Receiver acting under an order of court and the possession of,the property, had been given to the lessee, and subsequently certain parties applied to the court for a declaration that the lease was invalid on the ground that it was obtained by collusion. There the court held that no summary order could be passed to set aside the lease and the proper remedy would be by a suit against the Receiver and also against the lessee. In that case the lessee, though he was a party to the suit, acquired a leasehold right under the lease deed and third parties, who offered a higher rent, sought to question the lease on the ground of collusion. Woodroffe, J. held that the dispute could only be decided in a properly instituted suit. The Rajasthan High Court in Manakchand v. Pannalal, AIR 1951 Raj 152 , held that a Receiver could not recover the rent from a lessee in a summary order of the court, but should file a suit just like any other landlord. The Allahabad High Court in. Loonkaran v. I. N. John, AIR 1961 All 59 , though it conceded that where a lease had been executed by the Receiver, the lessee may ordinarily be evicted from the demised property only by a regular suit, hold that where after the expiry of the term of the lease granted by a Receiver, the sublessee in possession gave an undertaking to the court he would vacate the premises in favour of the prospective leassee if to fresh lease was granted in his favour the court has power to eject the sub-leasee in its summary jurisdiction. The learned Judge observed at p. 59 thus :"By giving an undertaking to the court that he would vacate the Mill in favour of the prospective lessee and by bidding in the court-auction the appellant, in our view, submitted himself to the jurisdiction of the court. The appellant could therefore be ejected by summary process, instead of by a suit."So too, the High Court of Travancore Cochin in Sivarajan v. Official Receiver, Quilon District, ILR (1953) Trav-Co. 30 : (AIR 1953 Trav-Co. 205), held that where the period of the lease granted to the receiver had already expired and as per the express stipulation in the lease deed the lessee was bound to surrender possession of the property without, raising any objection at all the court could summarily evict him. The learned Judge made the following observations at p. 39 (of ILR Trav-Co) : (at p. 208 of AIR) :"Even though the lease deed stands in favour of the receiver the express undertaking given by the lessee for an unconditional surrender of the property is in favour of the court .... . . . . .. . . The summary enforcement of the undertaking thus taken by the court is only a step towards the discharge of the duties of the court in the management of the estate and it cannot be said that the court has lost its jurisdiction in that direction merely because the property has been in the possession of a lessee."Further citation would be redundant. These and such decisions seem to hold that a court cannot evict a lessee from a receiver, whether he is a party to the suit or not, in exercise of its summary jurisdiction unless the lease expressly conferred a right of re-entry under the lease deed on the receiver. It is not necessary to demarcate the boundaries of the summary jurisdiction of a court in managing an estate through a receiver, for in this case we are clearly of the opinion that the appellant was in possession of the mill under an agreed and integrated scheme for running the mills by the different partners, though he was put in possession under a document described as a lease deed. In effect the Receiver, during the course of the management, entrusted each mill to one of the partners so that the mills might be properly worked under experienced hands. The appellant expressly agreed to put the Receiver in possession of the mill after the expiry of three years. No question of deciding the conflicting claims of a lessee and a third party arises in this case; nor is the court called upon to pronounce on the vested rights of a lessee in conflict with those of the Receiver. But this is a simple case of a court in the course of its administration of the estate through the agency, of a Receiver making a suitable provision for the running of the mills. As the agreed term had expired the court, in our view, could certainly direct the appellant to put the mill in the possession of the Receiver.15. Lastly it has been brought to our notice that an application for the discharge of the Receiver is pending in the lower court. Any observations that we have made in this judgment are not intended to affect the merits one way or other in the disposal of that application. That application will be disposed of in accordance with law. | 0[ds]Whatever terminology may have been used, the fact remains that the Receivers were put in charge of the entire property of defendants 1st set, which includes their share in the mills, though it was equally made clear that the Receivers could not directly run the mills without further directions in thatdo not think that the scope of the orders is so limited. The combined effect of the said earlier orders was that the Receivers shall take possession of the entire properties of the two sets of defendants. But the Receivers were not given the power to run the mills without specific directions to that effect by the court. The Civil Judge by his order dated March 25, 1955. evolved a scheme for running the mills, and by that order he laid down the conditions and directed the Receivers to advertise calling for applications from persons, including the Government, who were willing to run the mills. This order was only confined to the three spinning mills. The compromise order in the appeals covered also the flour mill. Though different mills were to be run by different defendants by obtaining lease deeds, that was only a mode evolved for running the mills under the supervision of the court. Under the compromise, the leases were to be executed in favour of the Receiver. It also provided that in case the lessees did not carry out the terms of the lease, the Receiver should take possession of the mill in respect of which default was committed and, with the permission of the court, should lease out the mill to any of the defendants other than the defaulting party. The clauses saving the rights of the parties obviously refer to their rights which were the subject-matter of the suit and they could not have any reference to the terms agreed upon under the compromise order. Under the compromise order, the courts, though by consent, gave directions for running the mills which they left out for future consideration in their earlier orders. The result was that under the earlier orders, all the properties of the defendants were put in possession of the Receivers, and under the compromise order, the Receiver was directed to run the mills under the agreedis manifest from the aforesaid orders that the Receiver was not in possession of the entire property of the defendants, that he was not empowered to run the mills personally, that by subsequent orders he was directed to lease out the mills to the parties in the manner prescribed and that under the final order he was to take over possession and make other arrangements for running the mills. In the premises, we find it very difficult to accept the argument of learned counsel that the Receiver was not put in possession of the mills, but the mills continued to be in the possession of the defendants. We hold on a construction of the relevant orders that the flour mill of the appellant was also put in the possession of the Receiver and that the appellant was running the said mill under the compromiseS. 51(d) nor order XL of the Code of Civil Procedure prescribes for the termination of the office of receivership.We law may briefly be stated thus : (1) If a receiver is appointed in a suit until judgment, the appointment is brought to an end by the judgment in the act on (2) If a receiver is appointed in a suit, without his enure being expressly defined, he will continue to be receiver till he is discharged, (3) But, after the final disposal of the suit as between the parties to the litigation, the receivers functions are terminated, he would still be answerable in the court as its officer till he is finally discharged. (4) The court has ample power to continue the receiver even after the final decree if the exigencies of the case so require.12. Let us now apply the said principles to the facts of the instant case. The order appointing the Receivers did not expressly state that the Receivers term would expire on the termination of the suit. Under the Preliminary decree the plaintiff became entitled to apply for the passing of the final decree for the sale of the property charged and also to get a personal decree against the defendants 1st set and 2nd set for the balance of his claim remaining due after the sale. The preliminary decree expressly directed the Receivers to continue until discharged. Pursuant to the preliminary decree, a final decree for sale of the said properties was made, but the said decree did not in any way modify the direction given in the preliminary decree in respect of the Receivers. The combined effect of the two decrees is that the final decree did not terminate the suit, for the plaintiff would still be entitled to get a personal decree in case the sale proceeds were not sufficient to pay off his dues. It cannot, therefore, be said that the suit has been finally disposed of. That apart, the preliminary decree in express terms directed the Receiver to continue till they were discharged.In the circumstances, we are definitely of the opinion that the Receivers continued by the preliminary decree are entitled to function in that capacity till they arecourt, in our view, was legally competent to confer a power on the Receiver under Order XL, R. 1 (1)(d), of the Code of Civil Procedure to recover the property from the appellant.14. The decisions cited at the Bar are not of much relevance to the presentcitation would be redundant. These and such decisions seem to hold that a court cannot evict a lessee from a receiver, whether he is a party to the suit or not, in exercise of its summary jurisdiction unless the lease expressly conferred a right of re-entry under the lease deed on the receiver. It is not necessary to demarcate the boundaries of the summary jurisdiction of a court in managing an estate through a receiver, for in this case we are clearly of the opinion that the appellant was in possession of the mill under an agreed and integrated scheme for running the mills by the different partners, though he was put in possession under a document described as a lease deed. In effect the Receiver, during the course of the management, entrusted each mill to one of the partners so that the mills might be properly worked under experienced hands. The appellant expressly agreed to put the Receiver in possession of the mill after the expiry of three years. No question of deciding the conflicting claims of a lessee and a third party arises in this case; nor is the court called upon to pronounce on the vested rights of a lessee in conflict with those of the Receiver. But this is a simple case of a court in the course of its administration of the estate through the agency, of a Receiver making a suitable provision for the running of the mills. As the agreed term had expired the court, in our view, could certainly direct the appellant to put the mill in the possession of the Receiver.15. Lastly it has been brought to our notice that an application for the discharge of the Receiver is pending in the lower court. Any observations that we have made in this judgment are not intended to affect the merits one way or other in the disposal of that application. That application will be disposed of in accordance with law. | 0 | 6,592 | 1,365 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
to the suit and the court, through the Receiver took possession of the mill and thereafter the Receiver, during the course of the administration of the property, under a compromise arrangement for running the mills leased out the flour mill to the appellant with an express condition that the appellant should redeliver the property to the Receiver on the expiry of the lease. Admittedly the term of the lease had expired, and the court directed the Receiver to take possession of the mill. The court, in our view, was legally competent to confer a power on the Receiver under Order XL, R. 1 (1)(d), of the Code of Civil Procedure to recover the property from the appellant.14. The decisions cited at the Bar are not of much relevance to the present case. Krista Chandra Ghose v. Krista Sakcha Ghose, ILR 36 Cal 52 is a case where a lease was granted by a Receiver acting under an order of court and the possession of,the property, had been given to the lessee, and subsequently certain parties applied to the court for a declaration that the lease was invalid on the ground that it was obtained by collusion. There the court held that no summary order could be passed to set aside the lease and the proper remedy would be by a suit against the Receiver and also against the lessee. In that case the lessee, though he was a party to the suit, acquired a leasehold right under the lease deed and third parties, who offered a higher rent, sought to question the lease on the ground of collusion. Woodroffe, J. held that the dispute could only be decided in a properly instituted suit. The Rajasthan High Court in Manakchand v. Pannalal, AIR 1951 Raj 152 , held that a Receiver could not recover the rent from a lessee in a summary order of the court, but should file a suit just like any other landlord. The Allahabad High Court in. Loonkaran v. I. N. John, AIR 1961 All 59 , though it conceded that where a lease had been executed by the Receiver, the lessee may ordinarily be evicted from the demised property only by a regular suit, hold that where after the expiry of the term of the lease granted by a Receiver, the sublessee in possession gave an undertaking to the court he would vacate the premises in favour of the prospective leassee if to fresh lease was granted in his favour the court has power to eject the sub-leasee in its summary jurisdiction. The learned Judge observed at p. 59 thus :"By giving an undertaking to the court that he would vacate the Mill in favour of the prospective lessee and by bidding in the court-auction the appellant, in our view, submitted himself to the jurisdiction of the court. The appellant could therefore be ejected by summary process, instead of by a suit."So too, the High Court of Travancore Cochin in Sivarajan v. Official Receiver, Quilon District, ILR (1953) Trav-Co. 30 : (AIR 1953 Trav-Co. 205), held that where the period of the lease granted to the receiver had already expired and as per the express stipulation in the lease deed the lessee was bound to surrender possession of the property without, raising any objection at all the court could summarily evict him. The learned Judge made the following observations at p. 39 (of ILR Trav-Co) : (at p. 208 of AIR) :"Even though the lease deed stands in favour of the receiver the express undertaking given by the lessee for an unconditional surrender of the property is in favour of the court .... . . . . .. . . The summary enforcement of the undertaking thus taken by the court is only a step towards the discharge of the duties of the court in the management of the estate and it cannot be said that the court has lost its jurisdiction in that direction merely because the property has been in the possession of a lessee."Further citation would be redundant. These and such decisions seem to hold that a court cannot evict a lessee from a receiver, whether he is a party to the suit or not, in exercise of its summary jurisdiction unless the lease expressly conferred a right of re-entry under the lease deed on the receiver. It is not necessary to demarcate the boundaries of the summary jurisdiction of a court in managing an estate through a receiver, for in this case we are clearly of the opinion that the appellant was in possession of the mill under an agreed and integrated scheme for running the mills by the different partners, though he was put in possession under a document described as a lease deed. In effect the Receiver, during the course of the management, entrusted each mill to one of the partners so that the mills might be properly worked under experienced hands. The appellant expressly agreed to put the Receiver in possession of the mill after the expiry of three years. No question of deciding the conflicting claims of a lessee and a third party arises in this case; nor is the court called upon to pronounce on the vested rights of a lessee in conflict with those of the Receiver. But this is a simple case of a court in the course of its administration of the estate through the agency, of a Receiver making a suitable provision for the running of the mills. As the agreed term had expired the court, in our view, could certainly direct the appellant to put the mill in the possession of the Receiver.15. Lastly it has been brought to our notice that an application for the discharge of the Receiver is pending in the lower court. Any observations that we have made in this judgment are not intended to affect the merits one way or other in the disposal of that application. That application will be disposed of in accordance with law.
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court, should lease out the mill to any of the defendants other than the defaulting party. The clauses saving the rights of the parties obviously refer to their rights which were the subject-matter of the suit and they could not have any reference to the terms agreed upon under the compromise order. Under the compromise order, the courts, though by consent, gave directions for running the mills which they left out for future consideration in their earlier orders. The result was that under the earlier orders, all the properties of the defendants were put in possession of the Receivers, and under the compromise order, the Receiver was directed to run the mills under the agreedis manifest from the aforesaid orders that the Receiver was not in possession of the entire property of the defendants, that he was not empowered to run the mills personally, that by subsequent orders he was directed to lease out the mills to the parties in the manner prescribed and that under the final order he was to take over possession and make other arrangements for running the mills. In the premises, we find it very difficult to accept the argument of learned counsel that the Receiver was not put in possession of the mills, but the mills continued to be in the possession of the defendants. We hold on a construction of the relevant orders that the flour mill of the appellant was also put in the possession of the Receiver and that the appellant was running the said mill under the compromiseS. 51(d) nor order XL of the Code of Civil Procedure prescribes for the termination of the office of receivership.We law may briefly be stated thus : (1) If a receiver is appointed in a suit until judgment, the appointment is brought to an end by the judgment in the act on (2) If a receiver is appointed in a suit, without his enure being expressly defined, he will continue to be receiver till he is discharged, (3) But, after the final disposal of the suit as between the parties to the litigation, the receivers functions are terminated, he would still be answerable in the court as its officer till he is finally discharged. (4) The court has ample power to continue the receiver even after the final decree if the exigencies of the case so require.12. Let us now apply the said principles to the facts of the instant case. The order appointing the Receivers did not expressly state that the Receivers term would expire on the termination of the suit. Under the Preliminary decree the plaintiff became entitled to apply for the passing of the final decree for the sale of the property charged and also to get a personal decree against the defendants 1st set and 2nd set for the balance of his claim remaining due after the sale. The preliminary decree expressly directed the Receivers to continue until discharged. Pursuant to the preliminary decree, a final decree for sale of the said properties was made, but the said decree did not in any way modify the direction given in the preliminary decree in respect of the Receivers. The combined effect of the two decrees is that the final decree did not terminate the suit, for the plaintiff would still be entitled to get a personal decree in case the sale proceeds were not sufficient to pay off his dues. It cannot, therefore, be said that the suit has been finally disposed of. That apart, the preliminary decree in express terms directed the Receiver to continue till they were discharged.In the circumstances, we are definitely of the opinion that the Receivers continued by the preliminary decree are entitled to function in that capacity till they arecourt, in our view, was legally competent to confer a power on the Receiver under Order XL, R. 1 (1)(d), of the Code of Civil Procedure to recover the property from the appellant.14. The decisions cited at the Bar are not of much relevance to the presentcitation would be redundant. These and such decisions seem to hold that a court cannot evict a lessee from a receiver, whether he is a party to the suit or not, in exercise of its summary jurisdiction unless the lease expressly conferred a right of re-entry under the lease deed on the receiver. It is not necessary to demarcate the boundaries of the summary jurisdiction of a court in managing an estate through a receiver, for in this case we are clearly of the opinion that the appellant was in possession of the mill under an agreed and integrated scheme for running the mills by the different partners, though he was put in possession under a document described as a lease deed. In effect the Receiver, during the course of the management, entrusted each mill to one of the partners so that the mills might be properly worked under experienced hands. The appellant expressly agreed to put the Receiver in possession of the mill after the expiry of three years. No question of deciding the conflicting claims of a lessee and a third party arises in this case; nor is the court called upon to pronounce on the vested rights of a lessee in conflict with those of the Receiver. But this is a simple case of a court in the course of its administration of the estate through the agency, of a Receiver making a suitable provision for the running of the mills. As the agreed term had expired the court, in our view, could certainly direct the appellant to put the mill in the possession of the Receiver.15. Lastly it has been brought to our notice that an application for the discharge of the Receiver is pending in the lower court. Any observations that we have made in this judgment are not intended to affect the merits one way or other in the disposal of that application. That application will be disposed of in accordance with law.
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A.C. Narayanan & Another Vs. State of Maharashtra & Others | the transactions, there is no reason why the attorney holder cannot depose as a witness. Nevertheless, an explicit assertion as to the knowledge of the Power of Attorney holder about the transaction in question must be specified in the complaint. On this count, the fourth question becomes infructuous.24) In view of the discussion, we are of the opinion that the attorney holder cannot file a complaint in his own name as if he was the complainant, but he can initiate criminal proceedings on behalf of his principal. We also reiterate that where the payee is a proprietary concern, the complaint can be filed (i) by the proprietor of the proprietary concern, describing himself as the sole proprietor of the "payee"; (ii) the proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor; and (iii) the proprietor or the proprietary concern represented by the attorney holder under a power of attorney executed by the sole proprietor.25) Similar substantial questions were raised in the appeal arising out of S.L.P (Crl.) No. 2724 of 2008, which stand answered as above. Apart from the above questions, one distinct query was raised as to whether a person authorized by a Company or Statute or Institution can delegate powers to their subordinate/others for filing a criminal complaint? The issue raised is in reference to validity of sub-delegation of functions of the power of attorney. We have already clarified to the extent that the attorney holder can sign and file a complaint on behalf of the complainant-payee. However, whether the power of attorney holder will have the power to further delegate the functions to another person will completely depend on the terms of the general power of attorney. As a result, the authority to sub-delegate the functions must be explicitly mentioned in the general power of attorney. Otherwise, the sub-delegation will be inconsistent with the general power of attorney and thereby will be invalid in law. Nevertheless, the general power of attorney itself can be cancelled and be given to another person." 15. While holding that there is no serious conflict between the decisions in "MMTC (supra) and Janki Vashdeo Bhojwani (supra)", the larger Bench clarified the position and answered the questions framed in the following manner: "(i) Filing of complaint petition under Section 138 of N.I Act through power of attorney is perfectly legal and competent.(ii) The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.(iii) It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.(iv) In the light of section 145 of N.I Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the N.I. Act.(v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person." Case of A.C. Narayanan 16. In this case Magistrate had taken cognizance of the complaint without prima facie establishing the fact as to whether the Power of Attorney existed in first place and whether it was in order. It is not in dispute that the complaint against the appellant was not preferred by the payee or the holder in due course and the statement on oath of the person who filed the complaint has also not stated that he filed the complaint having been instructed by the payee or holder in due course of the cheque. Since the complaint was not filed abiding with the provisions of the Act, it was not open to the Magistrate to take cognizance. 17. From the bare perusal of the said complaint, it can be seen that except mentioning in the cause title there is no mention of, or a reference to the Power of Attorney in the body of the said complaint nor was it exhibited as part of the said complaint. Further, in the list of evidence there is just a mere mention of the words at serial no.6 viz. "Power of Attorney", however there is no date or any other particulars of the Power of Attorney mentioned in the complaint. Even in the verification statement made by the respondent no.2, there is not even a whisper that she is filing the complaint as the Power of Attorney holder of the complainant. Even the order of issue of process dated 20th February, 1998 does not mention that the Magistrate had perused any Power of Attorney for issuing process.18. The appellant has stated that his Advocate conducted search and inspection of the papers and proceedings of the criminal complaint and found that no Power of Attorney was found to be a part of that record. This has not been disputed by the respondents. In that view of the matter and in light of decision of the larger Bench, as referred above, we hold that the Magistrate wrongly took cognizance in the matter and the Court below erred in putting the onus on the appellant rather than the complainant. The aforesaid fact has also been overlooked by the High Court while passing the impugned judgment dated 12th August, 2005. | 1[ds]13. The first question relating to the eligibility of Power of Attorney holder to sign and file a complaint petition on behalf of the complainants and whether eligibility criteria prescribed by Section 142(a) of N.I. Act issatisfied, if the complaint petition itself is filed in the name of the payee or the holder in due course of the cheque, was answered by larger Bench in affirmative by its judgment in A.C. Narayanan vs. State of Maharashtra, 2013(11) ScaleFrom the bare perusal of the said complaint, it can be seen that except mentioning in the cause title there is no mention of, or a reference to the Power of Attorney in the body of the said complaint nor was it exhibited as part of the said complaint. Further, in the list of evidence there is just a mere mention of the words at serial no.6 viz. "Power of Attorney", however there is no date or any other particulars of the Power of Attorney mentioned in the complaint. Even in the verification statement made by the respondent no.2, there is not even a whisper that she is filing the complaint as the Power of Attorney holder of the complainant. Even the order of issue of process dated 20th February, 1998 does not mention that the Magistrate had perused any Power of Attorney for issuing process.18. The appellant has stated that his Advocate conducted search and inspection of the papers and proceedings of the criminal complaint and found that no Power of Attorney was found to be a part of that record. This has not been disputed by the respondents. In that view of the matter and in light of decision of the larger Bench, as referred above, we hold that the Magistrate wrongly took cognizance in the matter and the Court below erred in putting the onus on the appellant rather than the complainant. The aforesaid fact has also been overlooked by the High Court while passing the impugned judgment dated 12th August, 2005.In this case it is not in dispute that the complaint was filed by one Shri V. Shankar Prasad claiming to be General Power of Attorney of the complainant company. Subsequently PW-1 Shri Ravinder Singh gave the evidence on behalf of the Company under the General Power of Attorney given by the complainant Company. The complaint was not signed either by Managing Director or Director of the Company. It is also not in dispute that PW-1 is only the employee of the Company. As per Resolution of the Company i.e. Ex.P3 under first part Managing Director and Director are authorized to file suits and criminal complaints against the debtors for recovery of money and for prosecution. Under third part of the said Resolution they were authorized to appoint or nominate any other person to appear on their behalf in the Court and engage lawyer etc. But nothing on the record suggest that an employee is empowered to file the complaint on behalf of the Company. This apart, Managing Director and Director are authorized persons of the Company to file the complaint by signing and by giving evidence. At best the said persons can nominate any person to represent themselves or the Company before the Court. In the present case one Shri Shankar Prasad employee of the Company signed the complaint and the Deputy General Manager of the Company i.e. PW-1 gave evidence as if he knows everything though he does not know anything. There is nothing on the record to suggest that he was authorized by the Managing Director or any Director. Therefore, Magistrate by judgment dated 30th October, 2001 rightly acquitted the appellant. In such a situation, the case of the appellant is fully covered by decision by the larger bench of this Court passed in the present appeal. We have no other option but to set aside the impugned judgment dated 19th September, 2007 passed by the High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Appeal No.578 of 2002. The judgment and order dated 30th October, 2001 passed by the Court of XVIII Metropolitan Magistrate, Hyderabad in C.C.No.18 of 2000 is upheld. | 1 | 4,695 | 746 | ### 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 transactions, there is no reason why the attorney holder cannot depose as a witness. Nevertheless, an explicit assertion as to the knowledge of the Power of Attorney holder about the transaction in question must be specified in the complaint. On this count, the fourth question becomes infructuous.24) In view of the discussion, we are of the opinion that the attorney holder cannot file a complaint in his own name as if he was the complainant, but he can initiate criminal proceedings on behalf of his principal. We also reiterate that where the payee is a proprietary concern, the complaint can be filed (i) by the proprietor of the proprietary concern, describing himself as the sole proprietor of the "payee"; (ii) the proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor; and (iii) the proprietor or the proprietary concern represented by the attorney holder under a power of attorney executed by the sole proprietor.25) Similar substantial questions were raised in the appeal arising out of S.L.P (Crl.) No. 2724 of 2008, which stand answered as above. Apart from the above questions, one distinct query was raised as to whether a person authorized by a Company or Statute or Institution can delegate powers to their subordinate/others for filing a criminal complaint? The issue raised is in reference to validity of sub-delegation of functions of the power of attorney. We have already clarified to the extent that the attorney holder can sign and file a complaint on behalf of the complainant-payee. However, whether the power of attorney holder will have the power to further delegate the functions to another person will completely depend on the terms of the general power of attorney. As a result, the authority to sub-delegate the functions must be explicitly mentioned in the general power of attorney. Otherwise, the sub-delegation will be inconsistent with the general power of attorney and thereby will be invalid in law. Nevertheless, the general power of attorney itself can be cancelled and be given to another person." 15. While holding that there is no serious conflict between the decisions in "MMTC (supra) and Janki Vashdeo Bhojwani (supra)", the larger Bench clarified the position and answered the questions framed in the following manner: "(i) Filing of complaint petition under Section 138 of N.I Act through power of attorney is perfectly legal and competent.(ii) The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.(iii) It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.(iv) In the light of section 145 of N.I Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the N.I. Act.(v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person." Case of A.C. Narayanan 16. In this case Magistrate had taken cognizance of the complaint without prima facie establishing the fact as to whether the Power of Attorney existed in first place and whether it was in order. It is not in dispute that the complaint against the appellant was not preferred by the payee or the holder in due course and the statement on oath of the person who filed the complaint has also not stated that he filed the complaint having been instructed by the payee or holder in due course of the cheque. Since the complaint was not filed abiding with the provisions of the Act, it was not open to the Magistrate to take cognizance. 17. From the bare perusal of the said complaint, it can be seen that except mentioning in the cause title there is no mention of, or a reference to the Power of Attorney in the body of the said complaint nor was it exhibited as part of the said complaint. Further, in the list of evidence there is just a mere mention of the words at serial no.6 viz. "Power of Attorney", however there is no date or any other particulars of the Power of Attorney mentioned in the complaint. Even in the verification statement made by the respondent no.2, there is not even a whisper that she is filing the complaint as the Power of Attorney holder of the complainant. Even the order of issue of process dated 20th February, 1998 does not mention that the Magistrate had perused any Power of Attorney for issuing process.18. The appellant has stated that his Advocate conducted search and inspection of the papers and proceedings of the criminal complaint and found that no Power of Attorney was found to be a part of that record. This has not been disputed by the respondents. In that view of the matter and in light of decision of the larger Bench, as referred above, we hold that the Magistrate wrongly took cognizance in the matter and the Court below erred in putting the onus on the appellant rather than the complainant. The aforesaid fact has also been overlooked by the High Court while passing the impugned judgment dated 12th August, 2005.
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13. The first question relating to the eligibility of Power of Attorney holder to sign and file a complaint petition on behalf of the complainants and whether eligibility criteria prescribed by Section 142(a) of N.I. Act issatisfied, if the complaint petition itself is filed in the name of the payee or the holder in due course of the cheque, was answered by larger Bench in affirmative by its judgment in A.C. Narayanan vs. State of Maharashtra, 2013(11) ScaleFrom the bare perusal of the said complaint, it can be seen that except mentioning in the cause title there is no mention of, or a reference to the Power of Attorney in the body of the said complaint nor was it exhibited as part of the said complaint. Further, in the list of evidence there is just a mere mention of the words at serial no.6 viz. "Power of Attorney", however there is no date or any other particulars of the Power of Attorney mentioned in the complaint. Even in the verification statement made by the respondent no.2, there is not even a whisper that she is filing the complaint as the Power of Attorney holder of the complainant. Even the order of issue of process dated 20th February, 1998 does not mention that the Magistrate had perused any Power of Attorney for issuing process.18. The appellant has stated that his Advocate conducted search and inspection of the papers and proceedings of the criminal complaint and found that no Power of Attorney was found to be a part of that record. This has not been disputed by the respondents. In that view of the matter and in light of decision of the larger Bench, as referred above, we hold that the Magistrate wrongly took cognizance in the matter and the Court below erred in putting the onus on the appellant rather than the complainant. The aforesaid fact has also been overlooked by the High Court while passing the impugned judgment dated 12th August, 2005.In this case it is not in dispute that the complaint was filed by one Shri V. Shankar Prasad claiming to be General Power of Attorney of the complainant company. Subsequently PW-1 Shri Ravinder Singh gave the evidence on behalf of the Company under the General Power of Attorney given by the complainant Company. The complaint was not signed either by Managing Director or Director of the Company. It is also not in dispute that PW-1 is only the employee of the Company. As per Resolution of the Company i.e. Ex.P3 under first part Managing Director and Director are authorized to file suits and criminal complaints against the debtors for recovery of money and for prosecution. Under third part of the said Resolution they were authorized to appoint or nominate any other person to appear on their behalf in the Court and engage lawyer etc. But nothing on the record suggest that an employee is empowered to file the complaint on behalf of the Company. This apart, Managing Director and Director are authorized persons of the Company to file the complaint by signing and by giving evidence. At best the said persons can nominate any person to represent themselves or the Company before the Court. In the present case one Shri Shankar Prasad employee of the Company signed the complaint and the Deputy General Manager of the Company i.e. PW-1 gave evidence as if he knows everything though he does not know anything. There is nothing on the record to suggest that he was authorized by the Managing Director or any Director. Therefore, Magistrate by judgment dated 30th October, 2001 rightly acquitted the appellant. In such a situation, the case of the appellant is fully covered by decision by the larger bench of this Court passed in the present appeal. We have no other option but to set aside the impugned judgment dated 19th September, 2007 passed by the High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Appeal No.578 of 2002. The judgment and order dated 30th October, 2001 passed by the Court of XVIII Metropolitan Magistrate, Hyderabad in C.C.No.18 of 2000 is upheld.
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Eastern Book Company Vs. D.B.Modak | and the first clause/sub-section or initial matter of section/rule etc. to run-on instead of being let to start from a fresh line; done compressing of unquoted referends and use of *** for parts; replaced the series of dots in the raw text with ellipsis; removed abbreviations such as sec., R., cl. and substituted them with full word, i.e. Section, Rule, clause; added hyphenation after the section/rule numbers which have alphabets suffixed to them; applied indentation of quoted extracts; removed full stops or word ‘No.’ ; and given full forms of abbreviations to enhance readability and clarity. In addition to the above, capitalization and italicization is also made wherever necessary in the raw text; and punctuation, articles, spellings and compound words are also checked and corrected, if required, in the original text. 40. The aforesaid inputs put by the appellants in the judgments would have had a copyright had we accepted the principle that any one who by his or her own skill and labour creates an original work of whatever character, shall enjoy an exclusive right to copy that work and no one else would be permitted to reap the crop what the copyright owner had sown. No doubt the appellants have collected the material and improved the readability of the judgment by putting inputs in the original text of the judgment by considerable labour and arranged it in their own style, but that does not give the flavour of minimum requirement of creativity. The exercise of the skill and judgment required to produce the work is trivial and is on account of the labour and the capital invested and could be characterized as purely a work which has been brought about by putting some amount of labour by the appellants. Although for establishing a copyright, the creativity standard applies is not that something must be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required. It does require a minimal degree of creativity. Arrangement of the facts or data or the case law is already included in the judgment of the court. Therefore, creativity of SCC would only be addition of certain facts or material already published, case law published in another law report and its own arrangement and presentation of the judgment of the court in its own style to make it more user- friendly. The selection and arrangement can be viewed as typical and at best result of the labour, skill and investment of capital lacking even minimal creativity. It does not as a whole display sufficient originality so as to amount to an original work of the author. To support copyright, there must be some substantive variation and not merely a trivial variation, not the variation of the type where limited ways/unique of expression available and an author selects one of them which can be said to be a garden variety. Novelty or invention or innovative idea is not the requirement for protection of copyright but it does require minimal degree of creativity. In our view, the aforesaid inputs put by the appellants in the copy-edited judgments do not touch the standard of creativity required for the copyright.41. However, the inputs put in the original text by the appellants in (i) segregating the existing paragraphs in the original text by breaking them into separate paragraphs; (ii) adding internal paragraph numbering within a judgment after providing uniform paragraph numbering to the multiple judgments; and (iii) indicating in the judgment the Judges who have dissented or concurred by introducing the phrases like ‘concurring’, `partly concurring’, `partly dissenting’, `dissenting’, `supplementing’, `majority expressing no opinion’, etc., have to be viewed in a different light. The task of paragraph numbering and internal referencing requires skill and judgment in great measure. The editor who inserts para numbering must know how legal argumentation and legal discourse is conducted and how a judgment of a court of law must read. Often legal arguments or conclusions are either clubbed into one paragraph in the original judgment or parts of the same argument are given in separate paragraphs. It requires judgment and the capacity for discernment for determining whether to carve out a separate paragraph from an existing paragraph in the original judgment or to club together separate paragraphs in the original judgment of the court. Setting of paragraphs by the appellants of their own in the judgment entailed the exercise of the brain work, reading and understanding of subject of disputes, different issues involved, statutory provisions applicable and interpretation of the same and then dividing them in different paragraphs so that chain of thoughts and process of statement of facts and the application of law relevant to the topic discussed is not disturbed, would require full understanding of the entire subject of the judgment. Making paragraphs in a judgment could not be called a mechanical process. It requires careful consideration, discernment and choice and thus it can be called as a work of an author. Creation of paragraphs would obviously require extensive reading, careful study of subject and the exercise of judgment to make paragraph which has dealt with particular aspect of the case, and separating intermixing of a different subject. Creation of paragraphs by separating them from the passage would require knowledge, sound judgment and legal skill. In our opinion, this exercise and creation thereof has a flavour of minimum amount of creativity. The said principle would also apply when the editor has put an input whereby different Judges’ opinion has been shown to have been dissenting or partly dissenting or concurring, etc. It also requires reading of the whole judgment and understanding the questions involved and thereafter finding out whether the Judges have disagreed or have the dissenting opinion or they are partially disagreeing and partially agreeing to the view on a particular law point or even on facts. In these inputs put in by the appellants in the judgments reported in SCC, the appellants have a copyright and nobody is permitted to utilize the same. | 1[ds]8. The copyright protection finds its justification in fair play. When a person produces something with his skill and labour, it normally belongs to him and the other person would not be permitted to make a profit out of the skill and labour of the original author and it is for this reason the Copyright Act, 1957 gives to the authors certain exclusive rights in relation to the certain work referred in the Act. The object of the Act is to protect the author of the copyright work from an unlawful reproduction or exploitation of his work by others. Copyright is a right to stop others from exploiting the work without the consent or assent of the owner of the copyright. A copyright law presents a balance between the interests and rights of the author and that of the public in protecting the public domain, or to claim the copyright and protect it under the copyright statute. One of the key requirements is that of originality which contributes, and has a direct nexus, in maintaining the interests of the author as well as that of public in protecting the matters in public domain. It is a well-accepted principle of copyright law that there is no copyright in the facts per se, as the facts are not created nor have they originated with the author of any work which embodies these facts. The issue of copyright is closely connected to that of commercial viability, and commercial consequences and implications.Copyright is purely a creation of the statute under the 1957 Act. What rights the author has in his work by virtue of his creation, are defined in Sections 14 and 17 of the Act. These are exclusive rights, but subject to the other provisions of the Act. In the first place, the work should qualify under the provisions of Section 13, for the subsistence of copyright. Although the rights have been referred to as exclusive rights, there are various exceptions to them which are listed in Section 52.In many cases, a work is derived from an existing work. Whether in such a derivative work, a new copyright work is created, will depend on various factors, and would one of them be only skill, capital and labour expended upon it to qualify for copyright protection in a derivative literary work created from the pre-existing material in the public domain, and the required exercise of independent skill, labour and capital in its creation by the author would qualify him for the copyright protection in the derivative work. Or would it be the creativity in a derivative work in which the final position will depend upon the amount and value of the corrections and improvements, the independent skill & labour, and the creativity in the end-product is such as to create a new copyright work to make the creator of the derivative work the author of it; and if not, there will be no new copyright work and then the original author will remain the author of the original work and the creator of the derivative work will have been the author of the alterations or the inputs put therein, for their nature will not have been such as to attract the protection under the law ofis enough to say that this principle has been applied to maps, to road books, to guide books, to compilations on scientific and other subjects. This principle seems to be clearly applicable to the case of a selection of a poem. It was held that for such a selection as the plaintiff had made obviously required extensive reading, careful studying and comparison and the exercise of taste and judgment to make a selection for himself. But, if one spares himself this trouble and adopts some otherselection, he offends against the principle. The Court was of the opinion that the selection of poems made by the plaintiff and embodied in the Golden Treasury was the subject of copyright and that thebook had infringed that right.30. These decisions are the authority on the proposition that the work that has been originated from an author and is more than a mere copy of the original work, would be sufficient to generate copyright. This approach is consistent with the ‘sweat of thestandards of originality. The creation of the work which has resulted from little bit of skill, labour and capital are sufficient for a copyright in derivative work of an author. Decisions propounded a theory that an author deserves to have his or her efforts in producing a work, rewarded. The work of an author need not be in an original form or novel form, but it should not be copied fromwork, that is, it should originate from the author. The originality requirement in derivative work is that it should originate from the author by application of substantial degree of skill, industry or experience. Precondition to copyright is that work must be produced independently and not copied from another person. Where a compilation is produced from the original work, the compilation is more than simply a re-arranged copyright of original, which is often referred to as skill, judgment and or labour or capital. The copyright has nothing to do with originality or literary merit. Copyrighted material is that what is created by the author by his skill, labour and investment of capital, maybe it is derivative work.38. It is the admitted position that the reports in the Supreme Court Cases (SCC) of the judgments of the Supreme Court is a derivative work in public domain. By virtue of Section 52(1) of the Act, it is expressly provided that certain acts enumerated therein shall not constitute an infringement of copyright. Sub-clause (iv) of clause (q) of Section 52(1) excludes the reproduction or publication of any judgment or order of a Court, Tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the Court, the Tribunal or other judicial authority from copyright. The judicial pronouncements of the Apex Court would be in the public domain and its reproduction or publication would not infringe the copyright. That being the position, the copy-edited judgments would not satisfy the copyright merely by establishing amount of skill, labour and capital put in the inputs of the copy-edited judgments and the original or innovative thoughts for the creativity are completely excluded. Accordingly, original or innovative thoughts are necessary to establish copyright in thework. The principle where there is common source the person relying on it must prove that he actually went to the common source from where he borrowed the material, employing his own skill, labour and brain and he did not copy, would not apply to the judgments of the courts because there is no copyright in the judgments of the court, unless so made by the court itself. To secure a copyright for the judgments delivered by the court, it is necessary that the labour, skill and capital invested should be sufficient to communicate or impart to the judgment printed in SCC some quality or character which the original judgment does not possess and which differentiates the original judgment from the printed one. The Copyright Act is not concerned with the original idea but with the expression of thought. Copyright has nothing to do with originality or literary merit. Copyrighted material is that what is created by the author by his own skill, labour and investment of capital, maybe it is a derivative work which gives a flavour of creativity. The copyright work which comes into being should be original in the sense that by virtue of selection, co-ordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author. On the face of the provisions of the Indian Copyright Act, 1957, we think that the principle laid down by the Canadian Court would be applicable in copyright of the judgments of the Apex Court. We make it clear that the decision of ours would be confined to the judgments of the courts which are in the public domain as by virtue of Section 52 of the Act there is no copyright in the original text of the judgments. To claim copyright in a compilation, the author must produce the material with exercise of his skill and judgment which may not be creativity in the sense that it is novel or non-obvious, but at the same time it is not a product of merely labour and capital. The derivative work produced by the author must have some distinguishable features and flavour to raw text of the judgments delivered by the court. The trivial variation or inputs put in the judgment would not satisfy the test of copyright of an author.The aforesaid inputs put by the appellants in the judgments would have had a copyright had we accepted the principle that any one who by his or her own skill and labour creates an original work of whatever character, shall enjoy an exclusive right to copy that work and no one else would be permitted to reap the crop what the copyright owner had sown. No doubt the appellants have collected the material and improved the readability of the judgment by putting inputs in the original text of the judgment by considerable labour and arranged it in their own style, but that does not give the flavour of minimum requirement of creativity. The exercise of the skill and judgment required to produce the work is trivial and is on account of the labour and the capital invested and could be characterized as purely a work which has been brought about by putting some amount of labour by the appellants. Although for establishing a copyright, the creativity standard applies is not that something must be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required. It does require a minimal degree of creativity. Arrangement of the facts or data or the case law is already included in the judgment of the court. Therefore, creativity of SCC would only be addition of certain facts or material already published, case law published in another law report and its own arrangement and presentation of the judgment of the court in its own style to make it more user- friendly. The selection and arrangement can be viewed as typical and at best result of the labour, skill and investment of capital lacking even minimal creativity. It does not as a whole display sufficient originality so as to amount to an original work of the author. To support copyright, there must be some substantive variation and not merely a trivial variation, not the variation of the type where limited ways/unique of expression available and an author selects one of them which can be said to be a garden variety. Novelty or invention or innovative idea is not the requirement for protection of copyright but it does require minimal degree of creativity. In our view, the aforesaid inputs put by the appellants in the copy-edited judgments do not touch the standard of creativity required for the copyright.41. However, the inputs put in the original text by the appellants in (i) segregating the existing paragraphs in the original text by breaking them into separate paragraphs; (ii) adding internal paragraph numbering within a judgment after providing uniform paragraph numbering to the multiple judgments; and (iii) indicating in the judgment the Judges who have dissented or concurred by introducing the phrases like, `majority expressing noetc., have to be viewed in a different light. The task of paragraph numbering and internal referencing requires skill and judgment in great measure. The editor who inserts para numbering must know how legal argumentation and legal discourse is conducted and how a judgment of a court of law must read. Often legal arguments or conclusions are either clubbed into one paragraph in the original judgment or parts of the same argument are given in separate paragraphs. It requires judgment and the capacity for discernment for determining whether to carve out a separate paragraph from an existing paragraph in the original judgment or to club together separate paragraphs in the original judgment of the court. Setting of paragraphs by the appellants of their own in the judgment entailed the exercise of the brain work, reading and understanding of subject of disputes, different issues involved, statutory provisions applicable and interpretation of the same and then dividing them in different paragraphs so that chain of thoughts and process of statement of facts and the application of law relevant to the topic discussed is not disturbed, would require full understanding of the entire subject of the judgment. Making paragraphs in a judgment could not be called a mechanical process. It requires careful consideration, discernment and choice and thus it can be called as a work of an author. Creation of paragraphs would obviously require extensive reading, careful study of subject and the exercise of judgment to make paragraph which has dealt with particular aspect of the case, and separating intermixing of a different subject. Creation of paragraphs by separating them from the passage would require knowledge, sound judgment and legal skill. In our opinion, this exercise and creation thereof has a flavour of minimum amount of creativity. The said principle would also apply when the editor has put an input whereby differentopinion has been shown to have been dissenting or partly dissenting or concurring, etc. It also requires reading of the whole judgment and understanding the questions involved and thereafter finding out whether the Judges have disagreed or have the dissenting opinion or they are partially disagreeing and partially agreeing to the view on a particular law point or even on facts. In these inputs put in by the appellants in the judgments reported in SCC, the appellants have a copyright and nobody is permitted to utilize the same. | 1 | 24,817 | 2,499 | ### 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:
and the first clause/sub-section or initial matter of section/rule etc. to run-on instead of being let to start from a fresh line; done compressing of unquoted referends and use of *** for parts; replaced the series of dots in the raw text with ellipsis; removed abbreviations such as sec., R., cl. and substituted them with full word, i.e. Section, Rule, clause; added hyphenation after the section/rule numbers which have alphabets suffixed to them; applied indentation of quoted extracts; removed full stops or word ‘No.’ ; and given full forms of abbreviations to enhance readability and clarity. In addition to the above, capitalization and italicization is also made wherever necessary in the raw text; and punctuation, articles, spellings and compound words are also checked and corrected, if required, in the original text. 40. The aforesaid inputs put by the appellants in the judgments would have had a copyright had we accepted the principle that any one who by his or her own skill and labour creates an original work of whatever character, shall enjoy an exclusive right to copy that work and no one else would be permitted to reap the crop what the copyright owner had sown. No doubt the appellants have collected the material and improved the readability of the judgment by putting inputs in the original text of the judgment by considerable labour and arranged it in their own style, but that does not give the flavour of minimum requirement of creativity. The exercise of the skill and judgment required to produce the work is trivial and is on account of the labour and the capital invested and could be characterized as purely a work which has been brought about by putting some amount of labour by the appellants. Although for establishing a copyright, the creativity standard applies is not that something must be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required. It does require a minimal degree of creativity. Arrangement of the facts or data or the case law is already included in the judgment of the court. Therefore, creativity of SCC would only be addition of certain facts or material already published, case law published in another law report and its own arrangement and presentation of the judgment of the court in its own style to make it more user- friendly. The selection and arrangement can be viewed as typical and at best result of the labour, skill and investment of capital lacking even minimal creativity. It does not as a whole display sufficient originality so as to amount to an original work of the author. To support copyright, there must be some substantive variation and not merely a trivial variation, not the variation of the type where limited ways/unique of expression available and an author selects one of them which can be said to be a garden variety. Novelty or invention or innovative idea is not the requirement for protection of copyright but it does require minimal degree of creativity. In our view, the aforesaid inputs put by the appellants in the copy-edited judgments do not touch the standard of creativity required for the copyright.41. However, the inputs put in the original text by the appellants in (i) segregating the existing paragraphs in the original text by breaking them into separate paragraphs; (ii) adding internal paragraph numbering within a judgment after providing uniform paragraph numbering to the multiple judgments; and (iii) indicating in the judgment the Judges who have dissented or concurred by introducing the phrases like ‘concurring’, `partly concurring’, `partly dissenting’, `dissenting’, `supplementing’, `majority expressing no opinion’, etc., have to be viewed in a different light. The task of paragraph numbering and internal referencing requires skill and judgment in great measure. The editor who inserts para numbering must know how legal argumentation and legal discourse is conducted and how a judgment of a court of law must read. Often legal arguments or conclusions are either clubbed into one paragraph in the original judgment or parts of the same argument are given in separate paragraphs. It requires judgment and the capacity for discernment for determining whether to carve out a separate paragraph from an existing paragraph in the original judgment or to club together separate paragraphs in the original judgment of the court. Setting of paragraphs by the appellants of their own in the judgment entailed the exercise of the brain work, reading and understanding of subject of disputes, different issues involved, statutory provisions applicable and interpretation of the same and then dividing them in different paragraphs so that chain of thoughts and process of statement of facts and the application of law relevant to the topic discussed is not disturbed, would require full understanding of the entire subject of the judgment. Making paragraphs in a judgment could not be called a mechanical process. It requires careful consideration, discernment and choice and thus it can be called as a work of an author. Creation of paragraphs would obviously require extensive reading, careful study of subject and the exercise of judgment to make paragraph which has dealt with particular aspect of the case, and separating intermixing of a different subject. Creation of paragraphs by separating them from the passage would require knowledge, sound judgment and legal skill. In our opinion, this exercise and creation thereof has a flavour of minimum amount of creativity. The said principle would also apply when the editor has put an input whereby different Judges’ opinion has been shown to have been dissenting or partly dissenting or concurring, etc. It also requires reading of the whole judgment and understanding the questions involved and thereafter finding out whether the Judges have disagreed or have the dissenting opinion or they are partially disagreeing and partially agreeing to the view on a particular law point or even on facts. In these inputs put in by the appellants in the judgments reported in SCC, the appellants have a copyright and nobody is permitted to utilize the same.
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1
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in copyright of the judgments of the Apex Court. We make it clear that the decision of ours would be confined to the judgments of the courts which are in the public domain as by virtue of Section 52 of the Act there is no copyright in the original text of the judgments. To claim copyright in a compilation, the author must produce the material with exercise of his skill and judgment which may not be creativity in the sense that it is novel or non-obvious, but at the same time it is not a product of merely labour and capital. The derivative work produced by the author must have some distinguishable features and flavour to raw text of the judgments delivered by the court. The trivial variation or inputs put in the judgment would not satisfy the test of copyright of an author.The aforesaid inputs put by the appellants in the judgments would have had a copyright had we accepted the principle that any one who by his or her own skill and labour creates an original work of whatever character, shall enjoy an exclusive right to copy that work and no one else would be permitted to reap the crop what the copyright owner had sown. No doubt the appellants have collected the material and improved the readability of the judgment by putting inputs in the original text of the judgment by considerable labour and arranged it in their own style, but that does not give the flavour of minimum requirement of creativity. The exercise of the skill and judgment required to produce the work is trivial and is on account of the labour and the capital invested and could be characterized as purely a work which has been brought about by putting some amount of labour by the appellants. Although for establishing a copyright, the creativity standard applies is not that something must be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required. It does require a minimal degree of creativity. Arrangement of the facts or data or the case law is already included in the judgment of the court. Therefore, creativity of SCC would only be addition of certain facts or material already published, case law published in another law report and its own arrangement and presentation of the judgment of the court in its own style to make it more user- friendly. The selection and arrangement can be viewed as typical and at best result of the labour, skill and investment of capital lacking even minimal creativity. It does not as a whole display sufficient originality so as to amount to an original work of the author. To support copyright, there must be some substantive variation and not merely a trivial variation, not the variation of the type where limited ways/unique of expression available and an author selects one of them which can be said to be a garden variety. Novelty or invention or innovative idea is not the requirement for protection of copyright but it does require minimal degree of creativity. In our view, the aforesaid inputs put by the appellants in the copy-edited judgments do not touch the standard of creativity required for the copyright.41. However, the inputs put in the original text by the appellants in (i) segregating the existing paragraphs in the original text by breaking them into separate paragraphs; (ii) adding internal paragraph numbering within a judgment after providing uniform paragraph numbering to the multiple judgments; and (iii) indicating in the judgment the Judges who have dissented or concurred by introducing the phrases like, `majority expressing noetc., have to be viewed in a different light. The task of paragraph numbering and internal referencing requires skill and judgment in great measure. The editor who inserts para numbering must know how legal argumentation and legal discourse is conducted and how a judgment of a court of law must read. Often legal arguments or conclusions are either clubbed into one paragraph in the original judgment or parts of the same argument are given in separate paragraphs. It requires judgment and the capacity for discernment for determining whether to carve out a separate paragraph from an existing paragraph in the original judgment or to club together separate paragraphs in the original judgment of the court. Setting of paragraphs by the appellants of their own in the judgment entailed the exercise of the brain work, reading and understanding of subject of disputes, different issues involved, statutory provisions applicable and interpretation of the same and then dividing them in different paragraphs so that chain of thoughts and process of statement of facts and the application of law relevant to the topic discussed is not disturbed, would require full understanding of the entire subject of the judgment. Making paragraphs in a judgment could not be called a mechanical process. It requires careful consideration, discernment and choice and thus it can be called as a work of an author. Creation of paragraphs would obviously require extensive reading, careful study of subject and the exercise of judgment to make paragraph which has dealt with particular aspect of the case, and separating intermixing of a different subject. Creation of paragraphs by separating them from the passage would require knowledge, sound judgment and legal skill. In our opinion, this exercise and creation thereof has a flavour of minimum amount of creativity. The said principle would also apply when the editor has put an input whereby differentopinion has been shown to have been dissenting or partly dissenting or concurring, etc. It also requires reading of the whole judgment and understanding the questions involved and thereafter finding out whether the Judges have disagreed or have the dissenting opinion or they are partially disagreeing and partially agreeing to the view on a particular law point or even on facts. In these inputs put in by the appellants in the judgments reported in SCC, the appellants have a copyright and nobody is permitted to utilize the same.
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State of Uttar Pradesh & Others Vs. Mawana Sugars Limited | all the eventualities, the captive consumption of molasses by the sugar mills would thereby not be curtailed or prejudicially affected.23. With reference to "balance stock" as well, in the decision in Dhampur Sugar Mills, following observation in paragraph 20 (corresponds to para 27 of the reported judgment, as above) has been alluded to:"In our opinion, however, Clause (3) applies only to excess stock of molasses, that is, molasses which is in excess of and not used for captive consumption by sugar factory and is thus the balance stock."24. The Policy determined the balance stock as hereunder: Balance stock for the Molasses Year 2015-16 = unreserved preliminary stock of the group of mills in the Molasses Year 2015-16 + production in the Molasses Year 2015-16 - self-consumption of molasses in the Molasses Year 2015-16 (equivalent of self-consumption of molasses up to 31.10.2015 in the Molasses Year 2014-15).25. Thus the balance stock for the purpose of the Policy in essence is the stock that would be left over after utilization of the commodity for captive consumption in the Molasses Year 2015-16 from the sum total of the unreserved preliminary produce of the same molasses year and the production thereof in the said year. The computation of balance stock though relevant to eventually decide as to the extent of reservation that would be effective to ascertain the volume of supply to other distilleries manufacturing country-made liquor, it however does not in any way support the contention of the respondent that irrespective of the eventualities in the aforementioned clauses (a), (b) and (c), the reservation would be of 25% only of such balance stock and not otherwise. This is in view of the unambiguous prescript of the Policy that the reservation would be of 25% of the molasses produced, which by no means, can be construed to connote that such reservation had been contemplated to be only of the balance stock left over after the captive consumption of the sugar mill(s) concerned. Such a construction would be a total misreading of the Policy and would border on perversity.26. To recount, clause (3) of the order dated 09.06.2004, which fell for scrutiny of this Court in Dhampur Sugar Mills was in following terms:"25. The English translation supplied by the appellant at Annexure P-3 reads thus:"From the balance stock of molasses with each sugar mill, 20% of molasses shall be reserved for the distilleries manufacturing country liquor. The sugar mills having their own distilleries shall not be covered within this reservation to the extent that after the actual consumption of molasses in their captive distillery, 20% reservation shall be applicable on the balance stock."27. This is both in text and content totally dissimilar to the above excerpt extracted from the Policy for the Molasses Year 2015-16. Whereas in the order under challenge in Dhampur Sugar Mills, it is crystal clear that the policy intended reservation to the extent of 20% of the molasses from the balance stock with the sugar mill, in apparent contradistinction, in the Policy for the Molasses Year 2015-16, the mandate is for 25% reservation of the total molasses produced. The adjustment, if any, in the extent of reservation to be eventually made depending on the quantum of balance stock, in our comprehension, would not alter the essence of the Policy in the manner as pleaded by the respondent. The pith and purport of the two policies, being strikingly at variance, no analogy is permissible.28. A plain reading of paragraphs 46/47 of the decision in Dhampur Sugar Mills, (as referred to the Policy) which in its reported version in (2007) 8 SCC 338 , correspond to paragraphs 53 & 54 authenticate the above deduction. In the overall context, we are abundantly clear that such reference was unwarranted and, in any case, had been made only to indicate the notion that physically the balance stock would be the stock that would be left over after the captive consumption of molasses by the sugar mill concerned and has no bearing at all on the computation of balance stock as envisaged in the Policy and and in no manner would guide the interpretation thereof. In that view of the matter, the presupposition of the High Court that the Policy for the Molasses Year 2015-16 was based on the decision in Dhampur Sugar Mills is patently incorrect. Such policies being an annual event, contingent on contemporaneous exigencies and within the realm of executive discernment, the High Court, in our estimate, had fallen in gross error in proceeding on that premise and issuing the consequential directions as made. Noticeably, the Policy consciously underlines that in any event thereby, the captive consumption of molasses by the sugar mills is not affected at all, so much so that if the balance stock is more than the extent of reservation, the whole of it would apply, but if the balance stock is less than the quantity to be reserved, the reservation would work only to the extent of the balance stock and not in excess thereof. As the balance stock, if any, conceptually would be the residue after the utilization by way of captive consumption, in absence of the challenge to the Policy to be illegal, unfair, unjust, unreasonable or unconstitutional, the plea of the respondent that the reservation is unmistakably limited to 25% of the balance stock under all situations is visibly flawed and fallacious. The measure of the captive consumption for the Molasses Year 2015-16, on the basis of such utilization for the Molasses Year 2014-15, in absence of any overwhelming material to the contrary, also cannot be faulted with.29. In the wake up of the above, we are of the unhesitant opinion that the impugned judgment being based on a total misreading of the Policy for the Molasses Year 2015-16 and also of the verdict in Dhampur Sugar Mills in its application to the attendant facts and circumstances, it is clearly insupportable and unsound in law and is thus liable to be set aside, which we hereby do. | 0[ds]13. The disparate pleadings and the contrasting assertions have received our due consideration. As a plain reading of the impugned judgment would testify, that it is substantially structured on the rendering in Dhampur Sugar Mills, apt it would be at the outset to advert thereto, so as to clear the deck for the ultimatereiterate, neither the validity of the Act nor that of the Policy has been assailed and hence, the instant exercise is limited to the dissension on the interpretation of the Policy in its application to the respondent and other sugar mills equally situated. To address the issue and having regard to theThe records testify that the said Policywas published by a Circular/Communicationin vernacular and a translated copy thereof has been placed on records and produced in course of the arguments. As it had been attested on behalf of the appellants by Mr. Dwivedi that the document produced at the hearing bears the correct translated version of the original, the same would be referred to.As all the clauses would demonstrate, reference of paragraphs 46 and 47 of the decision in Dhampur Sugar Mills has been referred to, highlighting that in all the eventualities, the captive consumption of molasses by the sugar mills would thereby not be curtailed or prejudicially affected.This is both in text and content totally dissimilar to the above excerpt extracted from the Policy for the Molasses YearWhereas in the order under challenge in Dhampur Sugar Mills, it is crystal clear that the policy intended reservation to the extent of 20% of the molasses from the balance stock with the sugar mill, in apparent contradistinction, in the Policy for the Molasses Yearthe mandate is for 25% reservation of the total molasses produced. The adjustment, if any, in the extent of reservation to be eventually made depending on the quantum of balance stock, in our comprehension, would not alter the essence of the Policy in the manner as pleaded by the respondent. The pith and purport of the two policies, being strikingly at variance, no analogy is permissible.28. A plain reading of paragraphs 46/47 of the decision in Dhampur Sugar Mills, (as referred to the Policy) which in its reported version in (2007) 8 SCC 338 , correspond to paragraphs 53 & 54 authenticate the above deduction. In the overall context, we are abundantly clear that such reference was unwarranted and, in any case, had been made only to indicate the notion that physically the balance stock would be the stock that would be left over after the captive consumption of molasses by the sugar mill concerned and has no bearing at all on the computation of balance stock as envisaged in the Policy and and in no manner would guide the interpretation thereof. In that view of the matter, the presupposition of the High Court that the Policy for the Molasses Yearwas based on the decision in Dhampur Sugar Mills is patently incorrect. Such policies being an annual event, contingent on contemporaneous exigencies and within the realm of executive discernment, the High Court, in our estimate, had fallen in gross error in proceeding on that premise and issuing the consequential directions as made. Noticeably, the Policy consciously underlines that in any event thereby, the captive consumption of molasses by the sugar mills is not affected at all, so much so that if the balance stock is more than the extent of reservation, the whole of it would apply, but if the balance stock is less than the quantity to be reserved, the reservation would work only to the extent of the balance stock and not in excess thereof. As the balance stock, if any, conceptually would be the residue after the utilization by way of captive consumption, in absence of the challenge to the Policy to be illegal, unfair, unjust, unreasonable or unconstitutional, the plea of the respondent that the reservation is unmistakably limited to 25% of the balance stock under all situations is visibly flawed and fallacious. The measure of the captive consumption for the Molasses Yearon the basis of such utilization for the Molasses Yearin absence of any overwhelming material to the contrary, also cannot be faulted with.29. In the wake up of the above, we are of the unhesitant opinion that the impugned judgment being based on a total misreading of the Policy for the Molasses Yearand also of the verdict in Dhampur Sugar Mills in its application to the attendant facts and circumstances, it is clearly insupportable and unsound in law and is thus liable to be set aside, which we hereby do. | 0 | 5,540 | 832 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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all the eventualities, the captive consumption of molasses by the sugar mills would thereby not be curtailed or prejudicially affected.23. With reference to "balance stock" as well, in the decision in Dhampur Sugar Mills, following observation in paragraph 20 (corresponds to para 27 of the reported judgment, as above) has been alluded to:"In our opinion, however, Clause (3) applies only to excess stock of molasses, that is, molasses which is in excess of and not used for captive consumption by sugar factory and is thus the balance stock."24. The Policy determined the balance stock as hereunder: Balance stock for the Molasses Year 2015-16 = unreserved preliminary stock of the group of mills in the Molasses Year 2015-16 + production in the Molasses Year 2015-16 - self-consumption of molasses in the Molasses Year 2015-16 (equivalent of self-consumption of molasses up to 31.10.2015 in the Molasses Year 2014-15).25. Thus the balance stock for the purpose of the Policy in essence is the stock that would be left over after utilization of the commodity for captive consumption in the Molasses Year 2015-16 from the sum total of the unreserved preliminary produce of the same molasses year and the production thereof in the said year. The computation of balance stock though relevant to eventually decide as to the extent of reservation that would be effective to ascertain the volume of supply to other distilleries manufacturing country-made liquor, it however does not in any way support the contention of the respondent that irrespective of the eventualities in the aforementioned clauses (a), (b) and (c), the reservation would be of 25% only of such balance stock and not otherwise. This is in view of the unambiguous prescript of the Policy that the reservation would be of 25% of the molasses produced, which by no means, can be construed to connote that such reservation had been contemplated to be only of the balance stock left over after the captive consumption of the sugar mill(s) concerned. Such a construction would be a total misreading of the Policy and would border on perversity.26. To recount, clause (3) of the order dated 09.06.2004, which fell for scrutiny of this Court in Dhampur Sugar Mills was in following terms:"25. The English translation supplied by the appellant at Annexure P-3 reads thus:"From the balance stock of molasses with each sugar mill, 20% of molasses shall be reserved for the distilleries manufacturing country liquor. The sugar mills having their own distilleries shall not be covered within this reservation to the extent that after the actual consumption of molasses in their captive distillery, 20% reservation shall be applicable on the balance stock."27. This is both in text and content totally dissimilar to the above excerpt extracted from the Policy for the Molasses Year 2015-16. Whereas in the order under challenge in Dhampur Sugar Mills, it is crystal clear that the policy intended reservation to the extent of 20% of the molasses from the balance stock with the sugar mill, in apparent contradistinction, in the Policy for the Molasses Year 2015-16, the mandate is for 25% reservation of the total molasses produced. The adjustment, if any, in the extent of reservation to be eventually made depending on the quantum of balance stock, in our comprehension, would not alter the essence of the Policy in the manner as pleaded by the respondent. The pith and purport of the two policies, being strikingly at variance, no analogy is permissible.28. A plain reading of paragraphs 46/47 of the decision in Dhampur Sugar Mills, (as referred to the Policy) which in its reported version in (2007) 8 SCC 338 , correspond to paragraphs 53 & 54 authenticate the above deduction. In the overall context, we are abundantly clear that such reference was unwarranted and, in any case, had been made only to indicate the notion that physically the balance stock would be the stock that would be left over after the captive consumption of molasses by the sugar mill concerned and has no bearing at all on the computation of balance stock as envisaged in the Policy and and in no manner would guide the interpretation thereof. In that view of the matter, the presupposition of the High Court that the Policy for the Molasses Year 2015-16 was based on the decision in Dhampur Sugar Mills is patently incorrect. Such policies being an annual event, contingent on contemporaneous exigencies and within the realm of executive discernment, the High Court, in our estimate, had fallen in gross error in proceeding on that premise and issuing the consequential directions as made. Noticeably, the Policy consciously underlines that in any event thereby, the captive consumption of molasses by the sugar mills is not affected at all, so much so that if the balance stock is more than the extent of reservation, the whole of it would apply, but if the balance stock is less than the quantity to be reserved, the reservation would work only to the extent of the balance stock and not in excess thereof. As the balance stock, if any, conceptually would be the residue after the utilization by way of captive consumption, in absence of the challenge to the Policy to be illegal, unfair, unjust, unreasonable or unconstitutional, the plea of the respondent that the reservation is unmistakably limited to 25% of the balance stock under all situations is visibly flawed and fallacious. The measure of the captive consumption for the Molasses Year 2015-16, on the basis of such utilization for the Molasses Year 2014-15, in absence of any overwhelming material to the contrary, also cannot be faulted with.29. In the wake up of the above, we are of the unhesitant opinion that the impugned judgment being based on a total misreading of the Policy for the Molasses Year 2015-16 and also of the verdict in Dhampur Sugar Mills in its application to the attendant facts and circumstances, it is clearly insupportable and unsound in law and is thus liable to be set aside, which we hereby do.
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13. The disparate pleadings and the contrasting assertions have received our due consideration. As a plain reading of the impugned judgment would testify, that it is substantially structured on the rendering in Dhampur Sugar Mills, apt it would be at the outset to advert thereto, so as to clear the deck for the ultimatereiterate, neither the validity of the Act nor that of the Policy has been assailed and hence, the instant exercise is limited to the dissension on the interpretation of the Policy in its application to the respondent and other sugar mills equally situated. To address the issue and having regard to theThe records testify that the said Policywas published by a Circular/Communicationin vernacular and a translated copy thereof has been placed on records and produced in course of the arguments. As it had been attested on behalf of the appellants by Mr. Dwivedi that the document produced at the hearing bears the correct translated version of the original, the same would be referred to.As all the clauses would demonstrate, reference of paragraphs 46 and 47 of the decision in Dhampur Sugar Mills has been referred to, highlighting that in all the eventualities, the captive consumption of molasses by the sugar mills would thereby not be curtailed or prejudicially affected.This is both in text and content totally dissimilar to the above excerpt extracted from the Policy for the Molasses YearWhereas in the order under challenge in Dhampur Sugar Mills, it is crystal clear that the policy intended reservation to the extent of 20% of the molasses from the balance stock with the sugar mill, in apparent contradistinction, in the Policy for the Molasses Yearthe mandate is for 25% reservation of the total molasses produced. The adjustment, if any, in the extent of reservation to be eventually made depending on the quantum of balance stock, in our comprehension, would not alter the essence of the Policy in the manner as pleaded by the respondent. The pith and purport of the two policies, being strikingly at variance, no analogy is permissible.28. A plain reading of paragraphs 46/47 of the decision in Dhampur Sugar Mills, (as referred to the Policy) which in its reported version in (2007) 8 SCC 338 , correspond to paragraphs 53 & 54 authenticate the above deduction. In the overall context, we are abundantly clear that such reference was unwarranted and, in any case, had been made only to indicate the notion that physically the balance stock would be the stock that would be left over after the captive consumption of molasses by the sugar mill concerned and has no bearing at all on the computation of balance stock as envisaged in the Policy and and in no manner would guide the interpretation thereof. In that view of the matter, the presupposition of the High Court that the Policy for the Molasses Yearwas based on the decision in Dhampur Sugar Mills is patently incorrect. Such policies being an annual event, contingent on contemporaneous exigencies and within the realm of executive discernment, the High Court, in our estimate, had fallen in gross error in proceeding on that premise and issuing the consequential directions as made. Noticeably, the Policy consciously underlines that in any event thereby, the captive consumption of molasses by the sugar mills is not affected at all, so much so that if the balance stock is more than the extent of reservation, the whole of it would apply, but if the balance stock is less than the quantity to be reserved, the reservation would work only to the extent of the balance stock and not in excess thereof. As the balance stock, if any, conceptually would be the residue after the utilization by way of captive consumption, in absence of the challenge to the Policy to be illegal, unfair, unjust, unreasonable or unconstitutional, the plea of the respondent that the reservation is unmistakably limited to 25% of the balance stock under all situations is visibly flawed and fallacious. The measure of the captive consumption for the Molasses Yearon the basis of such utilization for the Molasses Yearin absence of any overwhelming material to the contrary, also cannot be faulted with.29. In the wake up of the above, we are of the unhesitant opinion that the impugned judgment being based on a total misreading of the Policy for the Molasses Yearand also of the verdict in Dhampur Sugar Mills in its application to the attendant facts and circumstances, it is clearly insupportable and unsound in law and is thus liable to be set aside, which we hereby do.
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Darshan Prashad Vs. Civil Judge Ii | not placed before the ceiling authorities in subsequent proceedings. It was further held that even in the writ petition no such material was placed in order to enable the Court to decide whether the second notice could be said to be illegal. Section 30(3) of the U. P. Act No. 20 of 1976 clearly provided that the prescribed authority was authorised to issue fresh notice within a period of two years from the date of any order passed in earlier ceiling proceedings. We are in agreement with the view taken by the High Court. Learned Counsel for the appellants was unable to show that in the facts and circumstances of the case, the notice issued under Section 10(2) of the present proceedings was in any manner illegal or without jurisdiction. 5. It was next contended on behalf of the Learned Counsel for the appellants that Smt. Saraswati Devi had left the company of the appellant Darshan Prashad and had started living with her parents even before the year 1955. The appellant (Darshan Prashad) had given her agricultural lands for her maintenance and thereafter married with another woman. It was submitted that Smt. Saraswati Devi had filed a suit on 22nd February, 1956 for permanent injunction to restrain the appellant Darshan Prashad from interfering with her possession over the lands given to her in lieu of maintenance. In that suit arbitrators were appointed by the Court and an award was given in favour of Smt. Saraswari Devi on 5-12-1956. The said award was made a rule of the Court and a decree was passed on 21-1-1957 in favour of Smt. Saraswati Devi restraining the appellant by a decree of permanent injunction from interfering with the possession of Smt. Saraswati Devi over the lands situated in village Karmahava Khurd, Tappa Lehara, Pargana Haveli, Gorakhpur. It was submitted that even in the proceedings taken under the provisions of Ceiling Act, 1960, Smt. Saraswati Devi was recognised as owner of land by virtue of the decree dated 21-1-1957, and also in consolidation proceedings which took place after the coming into force of the Ceiling Act, 1960. Learned Counsel for the appellants also contended that Smt. Saraswati Devi was also entitled to separate residence and maintenance from her husband under the provisions of the Hindu Married Womens Right to Separate Residence and Maintenance Act, 1946. It was thus contended that even though a judicial separation of Smt. Saraswati Devi may not have taken place, Smt. Saraswati Devi for all intents and purposes was a judicially separated wife and the agricultural lands in her ownership and possession long before the coming into force of the Ceiling Act, 1960, cannot be clubbed in the land of the appellant husband for determining the ceiling area. 6. We do not find any force in the above contention in view of the clear provisions of the Ceiling Act, 1960. Section 3(7) defines family as under:- "`family in relation to a tenure-holder, means himself or herself and his wife or her husband, as the case may be (other than a judicially separated wife or husband), minor sons and minor daughters (other than married daughters)." 7. It is clear from the above definition that the wife is included in the family of her husband other than a judicially separated wife.8. It is important to note that the Hindu Marriage Act, 1955 had come into force on 18th May, 1955, Section 10 of this Act provided for the judicial separation. Under S. 10 of the Hindu Marriage Act either party to a marriage was entitled to present a petition to the District Court praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of Section 13 and in the case of wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented. Thus, in order to get a judicial separation, it was necessary to obtain a decree under the above provision and then alone it could be recognised as a judicial separation. The Ceiling Act, 1960 was enacted and brought into operation long after the Hindu Marriage Act, and as such the legislature was fully aware of the meaning of judicial separated wife or husband while using this term in the definition of "family under Section 3 (7) of the Ceiling Act, 1960. It is further important to note that sub-section.(3) of Section 5 of the Ceiling Act, 1960, prescribes, while determining the ceiling area, the land of adult son/ sons who were themselves tenure-holders being excluded, but no such land is allowed to be excluded in the case of the wife, even though she might be a separate tenure-holder. Thus, it is abundantly. clear from a perusal of the above provisions that in the case of determining ceiling area of the land belonging to a person, the land even if owned or possessed by his wife in her own right would have to be included in the land of the husband treating the wife as a member of his family. The only exception has been made in the case of a judicially separated wife. It was contended by the learned Counsel for the appellants that a wider meaning should be given to the term judicially separated to include a wife who may be living separately from her husband and agricultural land owned or possessed in lieu of her right of maintenance should be excluded from the ceiling limit of her husband. It is difficult for us to accept this contention in view of the clear provisions of the Ceiling Act, 1960 which apart from being a beneficial Act for the landless has used the term judicially separated wife after the coming into force of the Hindu Marriage Act, 1955. This cannot be given a meaning to include a wife merely living separately from the husband, but having not obtained a decree for judicial separation under the provisions of the Hindu Marriage, Act, 1955. | 0[ds]4. The above provisions clearly show that the prescribed authority was given power to require any tenure-holder to furnish such particulars, by affidavit in respect of the land held by him and members of his family as may be prescribed which may be considered neceisary for the enforcement of the provisions of the Ceiling Act. It is clearly provided under Section 38-B inserted by the Amending Act as mentioned above that any finding or decision given before the commencement of this Seetion will not operate as a bar for the retrial of such proceeding or issue in accordance with the provisions of the Act as amended from time to time. The appellants had raised a similar objection before the High Court, but the same was rejected on the ground that if an earlier judgment is said to operate as res judicata in the subsequent proceedings, then all the necessary facts including pleadings of the earlier litigation must be placed in the subsequent proceedings. The High Court further observed that in the instant case, the earlier notice under Section 10(2) which was issued to the tenure-holder along with the statement prepared in Form No. 3 were not placed before the ceiling authorities in subsequent proceedings. It was further held that even in the writ petition no such material was placed in order to enable the Court to decide whether the second notice could be said to be illegal. Section 30(3) of the U. P. Act No. 20 of 1976 clearly provided that the prescribed authority was authorised to issue fresh notice within a period of two years from the date of any order passed in earlier ceiling proceedings. We are in agreement with the view taken by the High Court. Learned Counsel for the appellants was unable to show that in the facts and circumstances of the case, the notice issued under Section 10(2) of the present proceedings was in any manner illegal or without jurisdiction.We do not find any force in the above contention in view of the clear provisions of the Ceiling Act, 1960.It is clear from the above definition that the wife is included in the family of her husband other than a judicially separated wife.8. It is important to note that the Hindu Marriage Act, 1955 had come into force on 18th May, 1955, Section 10 of this Act provided for the judicial separation. Under S. 10 of the Hindu Marriage Act either party to a marriage was entitled to present a petition to the District Court praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of Section 13 and in the case of wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented. Thus, in order to get a judicial separation, it was necessary to obtain a decree under the above provision and then alone it could be recognised as a judicial separation. The Ceiling Act, 1960 was enacted and brought into operation long after the Hindu Marriage Act, and as such the legislature was fully aware of the meaning of judicial separated wife or husband while using this term in the definition of "family under Section 3 (7) of the Ceiling Act, 1960. It is further important to note that sub-section.(3) of Section 5 of the Ceiling Act, 1960, prescribes, while determining the ceiling area, the land of adult son/ sons who were themselves tenure-holders being excluded, but no such land is allowed to be excluded in the case of the wife, even though she might be a separate tenure-holder. Thus, it is abundantly. clear from a perusal of the above provisions that in the case of determining ceiling area of the land belonging to a person, the land even if owned or possessed by his wife in her own right would have to be included in the land of the husband treating the wife as a member of his family. The only exception has been made in the case of a judicially separated wife. It was contended by the learned Counsel for the appellants that a wider meaning should be given to the term judicially separated to include a wife who may be living separately from her husband and agricultural land owned or possessed in lieu of her right of maintenance should be excluded from the ceiling limit of her husband. It is difficult for us to accept this contention in view of the clear provisions of the Ceiling Act, 1960 which apart from being a beneficial Act for the landless has used the term judicially separated wife after the coming into force of the Hindu Marriage Act, 1955. This cannot be given a meaning to include a wife merely living separately from the husband, but having not obtained a decree for judicial separation under the provisions of the Hindu Marriage, Act, 1955. | 0 | 1,848 | 895 | ### 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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not placed before the ceiling authorities in subsequent proceedings. It was further held that even in the writ petition no such material was placed in order to enable the Court to decide whether the second notice could be said to be illegal. Section 30(3) of the U. P. Act No. 20 of 1976 clearly provided that the prescribed authority was authorised to issue fresh notice within a period of two years from the date of any order passed in earlier ceiling proceedings. We are in agreement with the view taken by the High Court. Learned Counsel for the appellants was unable to show that in the facts and circumstances of the case, the notice issued under Section 10(2) of the present proceedings was in any manner illegal or without jurisdiction. 5. It was next contended on behalf of the Learned Counsel for the appellants that Smt. Saraswati Devi had left the company of the appellant Darshan Prashad and had started living with her parents even before the year 1955. The appellant (Darshan Prashad) had given her agricultural lands for her maintenance and thereafter married with another woman. It was submitted that Smt. Saraswati Devi had filed a suit on 22nd February, 1956 for permanent injunction to restrain the appellant Darshan Prashad from interfering with her possession over the lands given to her in lieu of maintenance. In that suit arbitrators were appointed by the Court and an award was given in favour of Smt. Saraswari Devi on 5-12-1956. The said award was made a rule of the Court and a decree was passed on 21-1-1957 in favour of Smt. Saraswati Devi restraining the appellant by a decree of permanent injunction from interfering with the possession of Smt. Saraswati Devi over the lands situated in village Karmahava Khurd, Tappa Lehara, Pargana Haveli, Gorakhpur. It was submitted that even in the proceedings taken under the provisions of Ceiling Act, 1960, Smt. Saraswati Devi was recognised as owner of land by virtue of the decree dated 21-1-1957, and also in consolidation proceedings which took place after the coming into force of the Ceiling Act, 1960. Learned Counsel for the appellants also contended that Smt. Saraswati Devi was also entitled to separate residence and maintenance from her husband under the provisions of the Hindu Married Womens Right to Separate Residence and Maintenance Act, 1946. It was thus contended that even though a judicial separation of Smt. Saraswati Devi may not have taken place, Smt. Saraswati Devi for all intents and purposes was a judicially separated wife and the agricultural lands in her ownership and possession long before the coming into force of the Ceiling Act, 1960, cannot be clubbed in the land of the appellant husband for determining the ceiling area. 6. We do not find any force in the above contention in view of the clear provisions of the Ceiling Act, 1960. Section 3(7) defines family as under:- "`family in relation to a tenure-holder, means himself or herself and his wife or her husband, as the case may be (other than a judicially separated wife or husband), minor sons and minor daughters (other than married daughters)." 7. It is clear from the above definition that the wife is included in the family of her husband other than a judicially separated wife.8. It is important to note that the Hindu Marriage Act, 1955 had come into force on 18th May, 1955, Section 10 of this Act provided for the judicial separation. Under S. 10 of the Hindu Marriage Act either party to a marriage was entitled to present a petition to the District Court praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of Section 13 and in the case of wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented. Thus, in order to get a judicial separation, it was necessary to obtain a decree under the above provision and then alone it could be recognised as a judicial separation. The Ceiling Act, 1960 was enacted and brought into operation long after the Hindu Marriage Act, and as such the legislature was fully aware of the meaning of judicial separated wife or husband while using this term in the definition of "family under Section 3 (7) of the Ceiling Act, 1960. It is further important to note that sub-section.(3) of Section 5 of the Ceiling Act, 1960, prescribes, while determining the ceiling area, the land of adult son/ sons who were themselves tenure-holders being excluded, but no such land is allowed to be excluded in the case of the wife, even though she might be a separate tenure-holder. Thus, it is abundantly. clear from a perusal of the above provisions that in the case of determining ceiling area of the land belonging to a person, the land even if owned or possessed by his wife in her own right would have to be included in the land of the husband treating the wife as a member of his family. The only exception has been made in the case of a judicially separated wife. It was contended by the learned Counsel for the appellants that a wider meaning should be given to the term judicially separated to include a wife who may be living separately from her husband and agricultural land owned or possessed in lieu of her right of maintenance should be excluded from the ceiling limit of her husband. It is difficult for us to accept this contention in view of the clear provisions of the Ceiling Act, 1960 which apart from being a beneficial Act for the landless has used the term judicially separated wife after the coming into force of the Hindu Marriage Act, 1955. This cannot be given a meaning to include a wife merely living separately from the husband, but having not obtained a decree for judicial separation under the provisions of the Hindu Marriage, Act, 1955.
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4. The above provisions clearly show that the prescribed authority was given power to require any tenure-holder to furnish such particulars, by affidavit in respect of the land held by him and members of his family as may be prescribed which may be considered neceisary for the enforcement of the provisions of the Ceiling Act. It is clearly provided under Section 38-B inserted by the Amending Act as mentioned above that any finding or decision given before the commencement of this Seetion will not operate as a bar for the retrial of such proceeding or issue in accordance with the provisions of the Act as amended from time to time. The appellants had raised a similar objection before the High Court, but the same was rejected on the ground that if an earlier judgment is said to operate as res judicata in the subsequent proceedings, then all the necessary facts including pleadings of the earlier litigation must be placed in the subsequent proceedings. The High Court further observed that in the instant case, the earlier notice under Section 10(2) which was issued to the tenure-holder along with the statement prepared in Form No. 3 were not placed before the ceiling authorities in subsequent proceedings. It was further held that even in the writ petition no such material was placed in order to enable the Court to decide whether the second notice could be said to be illegal. Section 30(3) of the U. P. Act No. 20 of 1976 clearly provided that the prescribed authority was authorised to issue fresh notice within a period of two years from the date of any order passed in earlier ceiling proceedings. We are in agreement with the view taken by the High Court. Learned Counsel for the appellants was unable to show that in the facts and circumstances of the case, the notice issued under Section 10(2) of the present proceedings was in any manner illegal or without jurisdiction.We do not find any force in the above contention in view of the clear provisions of the Ceiling Act, 1960.It is clear from the above definition that the wife is included in the family of her husband other than a judicially separated wife.8. It is important to note that the Hindu Marriage Act, 1955 had come into force on 18th May, 1955, Section 10 of this Act provided for the judicial separation. Under S. 10 of the Hindu Marriage Act either party to a marriage was entitled to present a petition to the District Court praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of Section 13 and in the case of wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented. Thus, in order to get a judicial separation, it was necessary to obtain a decree under the above provision and then alone it could be recognised as a judicial separation. The Ceiling Act, 1960 was enacted and brought into operation long after the Hindu Marriage Act, and as such the legislature was fully aware of the meaning of judicial separated wife or husband while using this term in the definition of "family under Section 3 (7) of the Ceiling Act, 1960. It is further important to note that sub-section.(3) of Section 5 of the Ceiling Act, 1960, prescribes, while determining the ceiling area, the land of adult son/ sons who were themselves tenure-holders being excluded, but no such land is allowed to be excluded in the case of the wife, even though she might be a separate tenure-holder. Thus, it is abundantly. clear from a perusal of the above provisions that in the case of determining ceiling area of the land belonging to a person, the land even if owned or possessed by his wife in her own right would have to be included in the land of the husband treating the wife as a member of his family. The only exception has been made in the case of a judicially separated wife. It was contended by the learned Counsel for the appellants that a wider meaning should be given to the term judicially separated to include a wife who may be living separately from her husband and agricultural land owned or possessed in lieu of her right of maintenance should be excluded from the ceiling limit of her husband. It is difficult for us to accept this contention in view of the clear provisions of the Ceiling Act, 1960 which apart from being a beneficial Act for the landless has used the term judicially separated wife after the coming into force of the Hindu Marriage Act, 1955. This cannot be given a meaning to include a wife merely living separately from the husband, but having not obtained a decree for judicial separation under the provisions of the Hindu Marriage, Act, 1955.
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Commissioner of Central Excise, Vadodara Vs. Vadilal Gases Ltd. and Ors | gives long life to the filament of the bulb. Similarly, when the mixture of argon and carbondioxide is used in welding, the argon gas creates an inert atmosphere while the carbon dioxide gas stops oxidization of the material. Thus the individual gases retained their individual properties even when filled in the same cylinder. With the advent of modern techniques and the facility of filling two or more gases in one cylinder, the customers found them more economical to handle the gases and it saved labour. Further it was not necessary for the customer to mix these gases individually in a desired ratio, since such an exercise was more risky and needs expert technical handling. The question is whether in such circumstances the mixture of two or more gases in one cylinder amounted to manufacture in terms of Section 2(f) of the Central Excise Act......12. The decision of the Tribunal in Goyal Gases (P) Ltd. (supra) to the effect that such activity (mixing of gases) did not amount to manufacture has been affirmed by this Court by its order dated 03.04.2000 reported in Commissioner of Central Excise v. Goyal Gases (P) Ltd. 2000 (119) E.L.T. 5 (S.C.) which is in the following terms: The Tribunal has categorically held that no evidence was led by the Department to controvert the Assessees case that no new product with distinct usage and marketability had been produced. Even so, it is contended that the Tribunal failed to appreciate that by the mixing of four more gases a totally different product with distinct use and marketability was produced. We find, having heard the learned Additional Solicitor General, that there is, in fact, no evidence led by the Department to establish that case. The reliance upon the order of the Commissioner would appear to be misplaced because the Commissioners ipse dixit carries the matter no further.13. While it may be correct that in Goyal Gases (P) Ltd. (supra), the scope and effect of Note 10 of Chapter 28 of the Tariff Act was not specifically under consideration, nonetheless, the conclusion of the learned Tribunal, affirmed by this Court, to the effect that the mixture of an inert gas with oxygen, witrogen etc. does not result in creation of a new commodity, marketable as such, would be relevant insofar as the second limb of Note 10 of Chapter 28 of the Tariff Act is concerned. The finding in Goyal Gases (P) Ltd. (supra) that notwithstanding the mixing, the gases retained their individual properties even after being filled up in the same cylinder would clearly demonstrate that a new marketable product does not come into existence by the process of mixing. In this regard, the fact that the two items constituting the mixture are also separately marketable would be relevant in determining the applicability of the second part of Note 10 of Chapter 28 of the Tariff Act to the present case. 14. If that be so, we do not see as to how on the findings recorded by the learned Commissioner with regard to the "manufacturing process" and the data laid before us as well as the ratio of decision in Goyal Gases (P) Ltd. (supra), a view can be taken that the second part of the requirement stipulated by Note 10 of Chapter 28 of the Tariff Act is attracted in the present case and any new marketable product/item comes in existence by the process of mixture of gases in question. 15. The reliance placed by the Appellant-Revenue on the decision of this Court in Air Liquide North India Private Limited v. Commissioner of Central Excise (2011) 15 SCC 264 does not assist the Revenue in any manner. In the said case, neither the adjudicating authority nor this Court had the benefit of the details of the manufacturing process inasmuch as the same was kept away from the Court by the Assessee by contending the same to be a "trade-secret". In these circumstances, this Court in coming to its conclusion that the process deployed amounted to manufacture within the meaning of Note 10 of Chapter 28 of the Tariff Act relied on certain other features of the case, details of which have been set out in para 16 of the judgment, which may be noticed below: The only conclusion from the above is that the tests and the "process" conducted by the Appellant would amount to "treatment" in terms of Chapter Note 10 of Chapter 28 of the Tariff Act of the Act. The fact that the gas was not sold as such is further established from the fact that the gas, after the tests and treatment, was sold at a profit of 40% to 60%. if it was really being sold as such, then the customers of the Appellants could have purchased the same from the Appellants suppliers. When this question was put to the officer of the Appellant, he could not offer any cogent answer but merely stated that it was the customers preference. Further, he did not give proper answer as to how the profit margin was so high. The Appellant had supplied the gas not as such and the under the grade and style of the original manufacturer but under its own grade and standard. Further, while selling the gas, different cylinders were given separate certificates with regard to the pressure, moisture, purification and quality of the gas. This explains the high price at which the Appellant was selling the gas. Therefore, in our opinion, the Tribunal has rightly observed that if no treatment was given to the gas purchased by the Appellant, the customers of the Appellant would not have been purchasing helium from the Appellant at a price 40% to 60% above the price at which the Appellant was purchasing.16. In the light of the above, we do not see how the decision of this Court in Air Liquide North India Private Limited (supra) can assist the revenue in bringing home the point urged before us in the appeals under consideration. | 0[ds]7. The above issue need not detain the Court. We have a decision of the learned Tribunal in Ammonia Supply Company v. CCE, New Delhi 2001 (131) E.L.T. 626 (Tri.-Del.) wherein the Tribunal has taken the view that ammonia coming in tankers cannot be treated to have come in bulk packs. In this regard, there is also a Circular dated 08.10.1997 where this question has been dealt with by the Ministry of Finance (Department of Revenue) in the following way:In this context clarification have been sought regarding the scope of the expression "relabelling of containers and repacking from bulk packs". Doubts have been raised as to whether receiving of liquid chemicals in bulk in containers and offloading the same at the dealers premises or godown into available empty vessel and consequent delivery of these material in the very same condition to customers against orders can be held to be an act of repacking operations as envisaged in the said chapter note or notWhether an operation amounts to repacking or not, is a question to be decided on facts. However, activity such as simply transferring the material from one container to another container may not be categorised under the scope of this description. The goods are packed either for wholesale or for retail sale. Generally the expression "Packing" is considered as package containing a prepacked commodity and the quantity of product contained therein is also pre-determined. The packing is also generally done without the purchaser being present. The packages also contain information such as name of the manufacturer, quantity, value and other details of the product8. The decision of the learned Tribunal in Ammonia Supply Company (supra) has attained finality as the Department had not challenged the same9. Having read the relevant part of Note 10 of Chapter 28 of the Tariff Act, the reasoning adopted by the learned Tribunal in Ammonia Supply Company (supra) and the contents of the Circular dated 08.10.1997, we are of the view, that the conclusion of the learned Tribunal, as above, does not suffer from any infirmity which would require our interference11. From the manufacturing activity undertaken by the Assessee, as found by the learned Commissioner himself, and as extracted above, the Assessee apart from packing pure Argon and Nitrogen in smaller cylinders is also engaged in the activity of mixing of inert gases (like argon, nitrogen, helium etc.) with other gases like oxygen, nitrogen, carbon dioxide and making available such combination to the consumers in smaller cylinders. Whether such mixing of the gases in question amount to manufacture has been gone into by the learned Tribunal in Goyal Gases (P) Ltd. v. CCE, Meerut 2000 (115) ELT 467 (Tribunal). Paragraph 11 of the report in Goyal Gases (P) Ltd. (supra) being relevant may be extracted below:Appellants M/s. Goyal Gases (P) Ltd. have stated that they had been initially supplying various gases like liquid Nitrogen, liquid Argon, Hydrogen, Helium, etc. separately but subsequently, on demand from customers they had started supply of such gases in one cylinder as this was considered more economical to the customer as also convenient and time saving. The mixing of oxygen was with inert gases viz., crypton, helium, neon etc. which did not chemically react with each other. Since the mixture was with inert gases like argon, crypton, etc. which did not react chemically with each other, the inert gases remain separate even though kept in the same container. There was no lending or borrowing of any electron by either of the gases and the gases remained individually identified. The individual gases also retained their properties and were separately identifiable while in use. For example, when the mixture of argon and nitrogen is used in the manufacture of electric lamp, the argon gas performs the function of making the illumination. The Nitrogen gas gives long life to the filament of the bulb. Similarly, when the mixture of argon and carbondioxide is used in welding, the argon gas creates an inert atmosphere while the carbon dioxide gas stops oxidization of the material. Thus the individual gases retained their individual properties even when filled in the same cylinder. With the advent of modern techniques and the facility of filling two or more gases in one cylinder, the customers found them more economical to handle the gases and it saved labour. Further it was not necessary for the customer to mix these gases individually in a desired ratio, since such an exercise was more risky and needs expert technical handling. The question is whether in such circumstances the mixture of two or more gases in one cylinder amounted to manufacture in terms of Section 2(f) of the Central Excise Act....... The decision of the Tribunal in Goyal Gases (P) Ltd. (supra) to the effect that such activity (mixing of gases) did not amount to manufacture has been affirmed by this Court by its order dated 03.04.2000 reported in Commissioner of Central Excise v. Goyal Gases (P) Ltd. 2000 (119) E.L.T. 5 (S.C.) which is in the following terms:The Tribunal has categorically held that no evidence was led by the Department to controvert the Assessees case that no new product with distinct usage and marketability had been produced. Even so, it is contended that the Tribunal failed to appreciate that by the mixing of four more gases a totally different product with distinct use and marketability was produced. We find, having heard the learned Additional Solicitor General, that there is, in fact, no evidence led by the Department to establish that case. The reliance upon the order of the Commissioner would appear to be misplaced because the Commissioners ipse dixit carries the matter no further.. While it may be correct that in Goyal Gases (P) Ltd. (supra), the scope and effect of Note 10 of Chapter 28 of the Tariff Act was not specifically under consideration, nonetheless, the conclusion of the learned Tribunal, affirmed by this Court, to the effect that the mixture of an inert gas with oxygen, witrogen etc. does not result in creation of a new commodity, marketable as such, would be relevant insofar as the second limb of Note 10 of Chapter 28 of the Tariff Act is concerned. The finding in Goyal Gases (P) Ltd. (supra) that notwithstanding the mixing, the gases retained their individual properties even after being filled up in the same cylinder would clearly demonstrate that a new marketable product does not come into existence by the process of mixing. In this regard, the fact that the two items constituting the mixture are also separately marketable would be relevant in determining the applicability of the second part of Note 10 of Chapter 28 of the Tariff Act to the present case14. If that be so, we do not see as to how on the findings recorded by the learned Commissioner with regard to the "manufacturing process" and the data laid before us as well as the ratio of decision in Goyal Gases (P) Ltd. (supra), a view can be taken that the second part of the requirement stipulated by Note 10 of Chapter 28 of the Tariff Act is attracted in the present case and any new marketable product/item comes in existence by the process of mixture of gases in question15. The reliance placed by the Appellant-Revenue on the decision of this Court in Air Liquide North India Private Limited v. Commissioner of Central Excise (2011) 15 SCC 264 does not assist the Revenue in any manner. In the said case, neither the adjudicating authority nor this Court had the benefit of the details of the manufacturing process inasmuch as the same was kept away from the Court by the Assessee by contending the same to be a "trade-secret"In the light of the above, we do not see how the decision of this Court in Air Liquide North India Private Limited (supra) can assist the revenue in bringing home the point urged before us in the appeals under consideration. | 0 | 2,719 | 1,498 | ### Instruction:
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gives long life to the filament of the bulb. Similarly, when the mixture of argon and carbondioxide is used in welding, the argon gas creates an inert atmosphere while the carbon dioxide gas stops oxidization of the material. Thus the individual gases retained their individual properties even when filled in the same cylinder. With the advent of modern techniques and the facility of filling two or more gases in one cylinder, the customers found them more economical to handle the gases and it saved labour. Further it was not necessary for the customer to mix these gases individually in a desired ratio, since such an exercise was more risky and needs expert technical handling. The question is whether in such circumstances the mixture of two or more gases in one cylinder amounted to manufacture in terms of Section 2(f) of the Central Excise Act......12. The decision of the Tribunal in Goyal Gases (P) Ltd. (supra) to the effect that such activity (mixing of gases) did not amount to manufacture has been affirmed by this Court by its order dated 03.04.2000 reported in Commissioner of Central Excise v. Goyal Gases (P) Ltd. 2000 (119) E.L.T. 5 (S.C.) which is in the following terms: The Tribunal has categorically held that no evidence was led by the Department to controvert the Assessees case that no new product with distinct usage and marketability had been produced. Even so, it is contended that the Tribunal failed to appreciate that by the mixing of four more gases a totally different product with distinct use and marketability was produced. We find, having heard the learned Additional Solicitor General, that there is, in fact, no evidence led by the Department to establish that case. The reliance upon the order of the Commissioner would appear to be misplaced because the Commissioners ipse dixit carries the matter no further.13. While it may be correct that in Goyal Gases (P) Ltd. (supra), the scope and effect of Note 10 of Chapter 28 of the Tariff Act was not specifically under consideration, nonetheless, the conclusion of the learned Tribunal, affirmed by this Court, to the effect that the mixture of an inert gas with oxygen, witrogen etc. does not result in creation of a new commodity, marketable as such, would be relevant insofar as the second limb of Note 10 of Chapter 28 of the Tariff Act is concerned. The finding in Goyal Gases (P) Ltd. (supra) that notwithstanding the mixing, the gases retained their individual properties even after being filled up in the same cylinder would clearly demonstrate that a new marketable product does not come into existence by the process of mixing. In this regard, the fact that the two items constituting the mixture are also separately marketable would be relevant in determining the applicability of the second part of Note 10 of Chapter 28 of the Tariff Act to the present case. 14. If that be so, we do not see as to how on the findings recorded by the learned Commissioner with regard to the "manufacturing process" and the data laid before us as well as the ratio of decision in Goyal Gases (P) Ltd. (supra), a view can be taken that the second part of the requirement stipulated by Note 10 of Chapter 28 of the Tariff Act is attracted in the present case and any new marketable product/item comes in existence by the process of mixture of gases in question. 15. The reliance placed by the Appellant-Revenue on the decision of this Court in Air Liquide North India Private Limited v. Commissioner of Central Excise (2011) 15 SCC 264 does not assist the Revenue in any manner. In the said case, neither the adjudicating authority nor this Court had the benefit of the details of the manufacturing process inasmuch as the same was kept away from the Court by the Assessee by contending the same to be a "trade-secret". In these circumstances, this Court in coming to its conclusion that the process deployed amounted to manufacture within the meaning of Note 10 of Chapter 28 of the Tariff Act relied on certain other features of the case, details of which have been set out in para 16 of the judgment, which may be noticed below: The only conclusion from the above is that the tests and the "process" conducted by the Appellant would amount to "treatment" in terms of Chapter Note 10 of Chapter 28 of the Tariff Act of the Act. The fact that the gas was not sold as such is further established from the fact that the gas, after the tests and treatment, was sold at a profit of 40% to 60%. if it was really being sold as such, then the customers of the Appellants could have purchased the same from the Appellants suppliers. When this question was put to the officer of the Appellant, he could not offer any cogent answer but merely stated that it was the customers preference. Further, he did not give proper answer as to how the profit margin was so high. The Appellant had supplied the gas not as such and the under the grade and style of the original manufacturer but under its own grade and standard. Further, while selling the gas, different cylinders were given separate certificates with regard to the pressure, moisture, purification and quality of the gas. This explains the high price at which the Appellant was selling the gas. Therefore, in our opinion, the Tribunal has rightly observed that if no treatment was given to the gas purchased by the Appellant, the customers of the Appellant would not have been purchasing helium from the Appellant at a price 40% to 60% above the price at which the Appellant was purchasing.16. In the light of the above, we do not see how the decision of this Court in Air Liquide North India Private Limited (supra) can assist the revenue in bringing home the point urged before us in the appeals under consideration.
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of the view, that the conclusion of the learned Tribunal, as above, does not suffer from any infirmity which would require our interference11. From the manufacturing activity undertaken by the Assessee, as found by the learned Commissioner himself, and as extracted above, the Assessee apart from packing pure Argon and Nitrogen in smaller cylinders is also engaged in the activity of mixing of inert gases (like argon, nitrogen, helium etc.) with other gases like oxygen, nitrogen, carbon dioxide and making available such combination to the consumers in smaller cylinders. Whether such mixing of the gases in question amount to manufacture has been gone into by the learned Tribunal in Goyal Gases (P) Ltd. v. CCE, Meerut 2000 (115) ELT 467 (Tribunal). Paragraph 11 of the report in Goyal Gases (P) Ltd. (supra) being relevant may be extracted below:Appellants M/s. Goyal Gases (P) Ltd. have stated that they had been initially supplying various gases like liquid Nitrogen, liquid Argon, Hydrogen, Helium, etc. separately but subsequently, on demand from customers they had started supply of such gases in one cylinder as this was considered more economical to the customer as also convenient and time saving. The mixing of oxygen was with inert gases viz., crypton, helium, neon etc. which did not chemically react with each other. Since the mixture was with inert gases like argon, crypton, etc. which did not react chemically with each other, the inert gases remain separate even though kept in the same container. There was no lending or borrowing of any electron by either of the gases and the gases remained individually identified. The individual gases also retained their properties and were separately identifiable while in use. For example, when the mixture of argon and nitrogen is used in the manufacture of electric lamp, the argon gas performs the function of making the illumination. The Nitrogen gas gives long life to the filament of the bulb. Similarly, when the mixture of argon and carbondioxide is used in welding, the argon gas creates an inert atmosphere while the carbon dioxide gas stops oxidization of the material. Thus the individual gases retained their individual properties even when filled in the same cylinder. With the advent of modern techniques and the facility of filling two or more gases in one cylinder, the customers found them more economical to handle the gases and it saved labour. Further it was not necessary for the customer to mix these gases individually in a desired ratio, since such an exercise was more risky and needs expert technical handling. The question is whether in such circumstances the mixture of two or more gases in one cylinder amounted to manufacture in terms of Section 2(f) of the Central Excise Act....... The decision of the Tribunal in Goyal Gases (P) Ltd. (supra) to the effect that such activity (mixing of gases) did not amount to manufacture has been affirmed by this Court by its order dated 03.04.2000 reported in Commissioner of Central Excise v. Goyal Gases (P) Ltd. 2000 (119) E.L.T. 5 (S.C.) which is in the following terms:The Tribunal has categorically held that no evidence was led by the Department to controvert the Assessees case that no new product with distinct usage and marketability had been produced. Even so, it is contended that the Tribunal failed to appreciate that by the mixing of four more gases a totally different product with distinct use and marketability was produced. We find, having heard the learned Additional Solicitor General, that there is, in fact, no evidence led by the Department to establish that case. The reliance upon the order of the Commissioner would appear to be misplaced because the Commissioners ipse dixit carries the matter no further.. While it may be correct that in Goyal Gases (P) Ltd. (supra), the scope and effect of Note 10 of Chapter 28 of the Tariff Act was not specifically under consideration, nonetheless, the conclusion of the learned Tribunal, affirmed by this Court, to the effect that the mixture of an inert gas with oxygen, witrogen etc. does not result in creation of a new commodity, marketable as such, would be relevant insofar as the second limb of Note 10 of Chapter 28 of the Tariff Act is concerned. The finding in Goyal Gases (P) Ltd. (supra) that notwithstanding the mixing, the gases retained their individual properties even after being filled up in the same cylinder would clearly demonstrate that a new marketable product does not come into existence by the process of mixing. In this regard, the fact that the two items constituting the mixture are also separately marketable would be relevant in determining the applicability of the second part of Note 10 of Chapter 28 of the Tariff Act to the present case14. If that be so, we do not see as to how on the findings recorded by the learned Commissioner with regard to the "manufacturing process" and the data laid before us as well as the ratio of decision in Goyal Gases (P) Ltd. (supra), a view can be taken that the second part of the requirement stipulated by Note 10 of Chapter 28 of the Tariff Act is attracted in the present case and any new marketable product/item comes in existence by the process of mixture of gases in question15. The reliance placed by the Appellant-Revenue on the decision of this Court in Air Liquide North India Private Limited v. Commissioner of Central Excise (2011) 15 SCC 264 does not assist the Revenue in any manner. In the said case, neither the adjudicating authority nor this Court had the benefit of the details of the manufacturing process inasmuch as the same was kept away from the Court by the Assessee by contending the same to be a "trade-secret"In the light of the above, we do not see how the decision of this Court in Air Liquide North India Private Limited (supra) can assist the revenue in bringing home the point urged before us in the appeals under consideration.
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Escorts Farms Ltd Vs. Commissioner, Kumanon Division | the cases concerned and they are treated as special leave petitions against the orders passed by the appellate authority and considered its legality by granting leave. Hence, we hold that the lands covered under Ex. A-1 and Ex. A-4 should be treated as lands held by the vendor and the vendee. The Land Reforms Tribunal concerned is, therefore, directed to reopen the CCs filed by the respective partners and the managing partners of the company and determine the surplus lands according to law and then pass the appropriate orders according to law." 63. Similarly in the instant case, it has been found that large scale transfers were effected to defeat Ceiling Law. We, therefore, decline to upset the concurrent findings of the appellate authority and the High Court in our discretionary powers under Article 136 of the Constitution. We have also come to the same conclusion that the transfers made after the cut-off date were not in good faith hence liable to be ignored for determining the extent of surplus land with the holder. That apart we have also recorded a conclusion that the entire lands being held under a Govt. Grant were not transferable without permission of the government and they were invalid being in clear breach of the conditions of the Grant.64. Right of hearing to a necessary party is a valuable right. Denial or such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of Govt. Grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we, therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India. 6. Costs imposed as damages 65. The High Court has imposed heavy cost of rupees ten lacs on the Farms and has further directed its deposit within one month. In case of default its recovery is directed to be made from the Farm or Shri P.N. Mehta. The justification given by the High Court for imposing such heavy cost is that by maneuvering and manipulating transactions the Farm, with the help of Shri P.N. Mehta and the Company, were able to retain possession of the land and take its advantage and usufruct for long period of seventeen years. 66. We find that in the name of imposing cost, the High Court has, in effect, awarded lump sum damages for unauthorised use and occupation of surplus land. Section 16 of the Ceiling Act empowers levy of damages for use and occupation of surplus land and reads thus :- "Section 16. Damages for use and occupation of surplus land where any tenure holder holds any land on or after the commencement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act 1972, in excess of the ceiling area applicable to him, he shall be liable to pay to the State Government for the period commencing from the first day of July 1973, until the date on which the Collector takes possession of such surplus land under Section 14, or the date in which the tenure holding voluntarily delivers possession to the Collector under the said sub-section, whichever is earlier, such compensation for use and occupation as may be prescribed." 67. The quantification of damages payable to the State for use and occupation of surplus land under Section 16 is required to be done in accordance with the principles laid down in rule 18A of the rules framed under the Ceiling Act. The provisions of Section 16 read with Section 18-A require separate proceedings to be undertaken for determination and quantification of amount of damages for use and occupation of the surplus land. The said exercise ought to have been left to the Ceiling authorities. The High Court, in our opinion, should not have awarded lump sum damages by imposing heavy costs. P.N. Mehta was found to have taken active part in formation of partnership firms and obtaining the transfers for favoured parties. He did it, not in his individual capacity but, as a managing partner of one of the partnership firms and on being invited by the holder Company in the meeting of the Board of Directors to help out the company from the effect of ceiling law. In the event of default of payment of costs by the company, the direction made by the High Court to Shri P,N, Mehta to pay the cost is not justified. This part of the order of the High Court imposing Rupees Ten Lacs as costs on the Farm and directing its payment by the Farm or by P.N. Mehta is liable to be set aside.68. Before parting with the case, only mention has to be made of the submissions made by the learned counsel appearing for subsequent transferees of the lands involved and by some of the interveners who claim to have been allotted some lands. In our opinion the subsequent transferees and such interveners deserve no indulgence in this appeal. The subsequent transferees have stepped into the shoes of the original transferees. They can claim no different or better rights than their transferors. The contentions raised on their behalf are, therefore, not entertained. No relief can be granted to them. The intervenors have to work out their independent rights and remedies, if any, and can claim no right of hearing in these appeals. | 0[ds]The tenure holder of the land, therefore, within the meaning of the Ceiling Act was the Company i.e. the Govt. grantee and all proceedings initiated by notice to the Farm, submission of statement and declaration by the Farm culminating in the orders passed by the prescribed authority and the appellate authority were void and infructuous because the Govt. Grantee, as holder of the land, was not at all a party before the ceiling authority.The aforesaid contention is misleading and misconceived. We have already stated all the relevant facts above. The Govt. Grantee i.e. the Ruler was allowed to keep certain portion of the land as herediary tenant and the other portion in the name of the company in which he had share holding. The Ruler through the company was unable to develop and make the land cultivable within the stipulated period in the terms of the grant and, therefore, they handed over possession of the land of development to the Farm. The Farm came in possession of the land through the company and the Ruler. The possession, of Farm was, therefore, for and on behalf of the holder company and the ruler. The Farm was, therefore, only an ostensible holder of the land and the company of which the Ruler was a share holder continued to be the real holder. The notices issued by the ceiling authority were respondent by submitting statements and returns before the ceiling authority by the Farm. The Company and the Ruler submitted to those proceedings through the Farm. The Company and the Ruler never objected to the proceedings before the prescribed authority nor did they prefer any appeals to challenge those orders either in appellate forum or in writ proceedings. The proceedings therefore initiated, conducted and culminated against the Farm have to be treated in reality to be proceedings against the company and the Ruler as the holders of the land.The limited purpose of(4) of Section 5, as is clear from the language employed, is to treat the land as being held in proportion to the respective shares of the shareholders in the case of firm,society or other society and association of persons. Exclusion of public company from(4) of Section 5 is with intention to keep out public companies from the application of the saidin the matter of distribution of land holdings amongst shareholders. The exclusion of public company from(4) in the matter of distribution of shareholding of the land is not an indication that public company is not deemed to be a holder of land or legal person as defined in Clauses (9) and (17) of Section 3 of the Ceiling Act read with Clause (33) of Section 4 of the U.P. General Clauses Act. The contention, therefore, advanced that the ceiling proceedings could not have been initiated and concluded against the company through the Farm and they were all invalid and non est, has to be rejected.One of the most important issues, which arose in writ petition before the High Court was regarding findings of the appellate Authority on the validity of the transfers of land made by company in favour of the Farm and through the Farm in favour of the different partnership firms and individuals. We have already reproduced above the terms and conditions of the Govt. Grant contained in the letter dated 26.1.1950 of the Government of Uttar Pradesh whereunder erstwhile Ruler of Kashipur was allowed to lease the lands to the company for development. The terms of the grant show that 597 acres of land was allowed to be held by thewith hereditary rights and 2091 acres were allowed to be leased to the company of which the Ruler was the main shareholder. In condition No. 4 it is clearly stipulated that the land held under the lease shall be heritable but the succession will be regulated according to law governing impartibleThe above claim of the lessees and transferees of having acquired status of Sirdars and Bhumidhars cannot be accepted. The possession of the land was given to the company admittedly under the terms and conditions of the Govt. Grant which did not permit transfer of land without permission of the Government. The position of a government grantee is of a lessee as contained in definition clause (9) of section 3 of the Ceiling Act. The conditions of the Grant allowof the land but contrary to the terms of the Grant, thecan claim no independent tenancy right so as to frustrate the terms and tenure of the Grant. Irrespective of the provisions creating rights in favour of tenants under UP Tenancy Act 1939, the terms and conditions of the Grant have been given an overriding effect by provisions contained in Section 2, as inserted by UP Amendment Act of 1960 to the Govt. Grants Act with retrospective effect. Section 2 as introduced to the Govt. Grants Act in its application to the State UP clearly provides that the rights and obligations inter se between Government as granter of the land and its grantee would in no way be affected by thegranted by the Govt. grantee in accordance with the provisions of the UP Tenancy Act.The recording of the names of the company or the Farm in the revenue papers on 5.3.1954 as hereditary tenant and deposit of ten times the land revenue by thefor acquiring Bhumidhari rights were ineffectual in view of the provisions of Section 2 of the Govt. Grants (UP Amendment) Act, 1960 which give an overriding effect to terms of the Grant. The High Court, therefore, rightly negatived the claim set up by theof the land from the company through the Farm, to the status of Sirdars or Bhumidhars.32. No action of the revenue authorities can therefore estop the ceiling authorities from ignoring the claims of tenancy rights on the land set up by the lessess/The rights between the government and the grantee are strictly to be regulated by the terms of the grant and in accordance with the Govt. Grants (UP Amendment) Act 1960. The entries in revenue records and recognition of any tenancy rights of the lessee and / oras heredity tenant, Sirdars or Bhumidhars under UP Tenancy Act can have no adverse legal effect on the Govt. Grant which has an overriding effect under the Govt. Grants Act. No estoppel can operates against the overriding statute so as to bind the ceiling authorities to accept the tenancy rights of the lessees/as indefeasible in application of Ceiling Act to the lands in question.33. The Statement of Objects and Reasons for amending Section 2 of the Govt. Grants Act 1895 by UP Amendment Act of 1960 makes it clear that the State Legislature intended to apply only the provisions of Land Reforms Act and Ceiling Act to the lands held by persons under the Govt. Grants Act. The statements of objects and reasons read thus: Provisions of Section 2 of the Government Grants (UP Amendment) Act, 1959, have the effect of saving a grant of an agricultural lease by or on behalf of the Government from the operation not only on the Acts mentioned therein, but also of any other law, including the law for imposition of ceiling on land holdings, that might be made in future. There is also an apprehension that the result of the wordings of section 2 may be to undo the vesting of estates of government grantees under section 4 of the UP Zamindari Abolition and Land Reforms Act, 1950. With a view, therefore, to remove any such apprehension and to put the UP Imposition of Ceiling on Land Holdings Bill, 1959, when enacted, beyond the purview of the Government Grants Act, this Bill is being introduced. Vide UP Gazette Extraordinary, dated February, 3,s admittedly have been executed after the cut off date fixed in(6) of Section 5. Prior to the sales, on the basis of alleged oral leases three partnership firms were said to have been formed and later on increased to four, which it is alleged, have taken possession of the lands transferred toHigh Court also found the consideration received was not duly accounted for in the balance sheet of the company. It is on these facts that the High Court confirmed the conclusion of the appellate authority that all transfers were made to related parties and only to evade the effect of impending amendment to ceiling law. The concurrent findings in the judgment of appellate authority and of the High Court of lack of good faith on the part of the Company and the Firm in executing theafter the cut off date 24.1.1971 are not vitiated by consideration of any irrelevant circumstances and being essentially a finding of fact is not liable to be interfered with, in these appeals under Article 136 of the Constitution.From the above part of the order of the prescribed authority, it becomes clear that 250 acres of land was found to be held by the school as a separate legal entity. Exemption clause (ix) of section 6 as it stood in original section 6 was deleted byof new section 6 by Amendment Act No. 18 of 1973 with effect from 08.6.1973. By insertion of new section 6, the exemption earlier available to land held by education institution has been done away with effect from 8.6.1973.46. It is true that the above order of the prescribed authority dated 11.8.1967 excluding 250 acres of land as belonging to the school was not questioned by the State in appeal. The finding that the land was held by the school as a separate legal entity is obviously a mistake because in all subsequent proceedings before the ceiling authorities, the High Court and in this Court the land is stated to be held by the Company or Farm for running the school as one of its activities. The land was in use for the purposes of educational institution run by the Company or the Farm. It qualified for exemption under clause (ix) of section 6, as it stood then. It is to be noted that when the ceiling limit was reduced by Amendment Act of 1973, which was brought into force with effect from 5th June, 1973, the land measuring 250 acres, although excluded from ceiling limit of the holder, in law and in reality continued to be held and recorded in the name of the Farm which was its agent. Under the Amendment Act of 1973, the exemption of land held by an educational institution was taken away by substitution of new section 6 to the Act. Under section 5, ceiling limit was reduced and under6 of section 5, as inserted by Amendment Act of 1973, thedate fixed was 24.1.1971. It was provided that all transfers made by the holder of a land after the above date would be ignored unless, as provided in clause (b) of the6 of section 5 read with the explanation thereunder, the holder discharges his burden of proving to the satisfaction of the Prescribed Authority, that the transfers made after 24.1.1971 were in good faith, for adequate consideration and were not benamiis evident from the fact that all transfers orhaving been executed in favour of 75 transferees, after thedate 24.1.1971 by the Company to which the provisions of6 of Section 5, as introduced by the Amendment Act of 1973, where clearly attracted. A finding of fact has been recorded by the Commissioner and confirmed by the High Court in the Writ Petition that transfers of the land used for school have been made with full knowledge of the impending legislation proposing reduction of ceiling limit and intent to evade the effect of ceiling law. In our considered opinion, on the above admitted legal and factual premise, the bar of res judicata is not available to the holder Company or the Farm. Their own subsequent conduct of effecting transfers of school land estops them from raising a plea of res judicata on an apparently erroneous finding recorded in the order of Prescribed Authority in the course of proceedings under the original unamended Act.In view of our above discussion on the issue of applicability of the doctrine of res judicata, it is not necessary for us to deal and discuss cases cited by a counsel for the parties on the power of the Appellate Authority, by invoking provisions of Order 41 Rule 33 of the Code of Civil Procedure, to hold the land of school as includible for determination of ceiling area, in the appeals instituted against the order of the Prescribed Authority by the holder of the land and the transferees and without any appeal by the State.Reading the provision of(6) of Section 5 with proviso (b) Explanation (II) there under, it is difficult to accept the contention advanced on behalf of the State that the transferees were merely proper parties and were not entitled to be arrayed, noticed and heard in the proceedings under the Ceiling Act. The transfer made after the cut off date could have been saved only on proof of good faith and payment of adequate consideration for the transfers. This burden of proof can be discharged jointly or singly either by the transferor or transferee. The transferee is the party likely to be adversely affected by the order nullifying the transfer if found to be lacking in good faith. The transferee is clearly covered by the expression "the party claiming its benefit" as used in Explanation (II)(6) of Section 5." The burden of proof in respect of bona fides of transfers is also on the person or party claiming its benefit. It was therefore necessary to make transferees as parties in the appeal and grant them opportunity of hearing by the appellate authority. To that extent the order of the appellate authority can be said to have been vitiated for not following the required procedure.60. For a different reason, however, we decline to set aside the appellate order of the Commissioner which has been confirmed by the High Court.of transferees as parties and denial of opportunity of hearing to them, in the facts and circumstances found here, cannot be said to be fatal to the entire ceilingHigh Court has in great detail critically examined all the relevant evidence produced by the transferees before arriving at an adverse conclusion against them. This Court would have been inclined and justified in making a remand of the case to the appellate authority to make all transferees as parties and give them opportunity of hearing in respect of the portions of land purchased by them from out of 250 acres of land held in the name of the school. Since, however, the High Court has already given full opportunity of hearing to the transferees on this aspect we refrain from making any order of remand just for the sake of completing a formality of granting them similar opportunity of hearing by the appellate authority with no likelihood of any conclusion different from the one reached by the High Court and this Court on merits of the case.Similarly in the instant case, it has been found that large scale transfers were effected to defeat Ceiling Law. We, therefore, decline to upset the concurrent findings of the appellate authority and the High Court in our discretionary powers under Article 136 of the Constitution. We have also come to the same conclusion that the transfers made after thedate were not in good faith hence liable to be ignored for determining the extent of surplus land with the holder. That apart we have also recorded a conclusion that the entire lands being held under a Govt. Grant were not transferable without permission of the government and they were invalid being in clear breach of the conditions of the Grant.64. Right of hearing to a necessary party is a valuable right. Denial or such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of Govt. Grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we, therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India.We find that in the name of imposing cost, the High Court has, in effect, awarded lump sum damages for unauthorised use and occupation of surplus land. Section 16 of the Ceiling Act empowers levy of damages for use and occupation of surplusThe quantification of damages payable to the State for use and occupation of surplus land under Section 16 is required to be done in accordance with the principles laid down in rule 18A of the rules framed under the Ceiling Act. The provisions of Section 16 read with Sectionrequire separate proceedings to be undertaken for determination and quantification of amount of damages for use and occupation of the surplus land. The said exercise ought to have been left to the Ceiling authorities. The High Court, in our opinion, should not have awarded lump sum damages by imposing heavy costs. P.N. Mehta was found to have taken active part in formation of partnership firms and obtaining the transfers for favoured parties. He did it, not in his individual capacity but, as a managing partner of one of the partnership firms and on being invited by the holder Company in the meeting of the Board of Directors to help out the company from the effect of ceiling law. In the event of default of payment of costs by the company, the direction made by the High Court to Shri P,N, Mehta to pay the cost is not justified. This part of the order of the High Court imposing Rupees Ten Lacs as costs on the Farm and directing its payment by the Farm or by P.N. Mehta is liable to be set aside.68. Before parting with the case, only mention has to be made of the submissions made by the learned counsel appearing for subsequent transferees of the lands involved and by some of the interveners who claim to have been allotted some lands. In our opinion the subsequent transferees and such interveners deserve no indulgence in this appeal. The subsequent transferees have stepped into the shoes of the original transferees. They can claim no different or better rights than their transferors. The contentions raised on their behalf are, therefore, not entertained. No relief can be granted to them. The intervenors have to work out their independent rights and remedies, if any, and can claim no right of hearing in these appeals. | 0 | 13,317 | 3,448 | ### Instruction:
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the cases concerned and they are treated as special leave petitions against the orders passed by the appellate authority and considered its legality by granting leave. Hence, we hold that the lands covered under Ex. A-1 and Ex. A-4 should be treated as lands held by the vendor and the vendee. The Land Reforms Tribunal concerned is, therefore, directed to reopen the CCs filed by the respective partners and the managing partners of the company and determine the surplus lands according to law and then pass the appropriate orders according to law." 63. Similarly in the instant case, it has been found that large scale transfers were effected to defeat Ceiling Law. We, therefore, decline to upset the concurrent findings of the appellate authority and the High Court in our discretionary powers under Article 136 of the Constitution. We have also come to the same conclusion that the transfers made after the cut-off date were not in good faith hence liable to be ignored for determining the extent of surplus land with the holder. That apart we have also recorded a conclusion that the entire lands being held under a Govt. Grant were not transferable without permission of the government and they were invalid being in clear breach of the conditions of the Grant.64. Right of hearing to a necessary party is a valuable right. Denial or such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of Govt. Grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we, therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India. 6. Costs imposed as damages 65. The High Court has imposed heavy cost of rupees ten lacs on the Farms and has further directed its deposit within one month. In case of default its recovery is directed to be made from the Farm or Shri P.N. Mehta. The justification given by the High Court for imposing such heavy cost is that by maneuvering and manipulating transactions the Farm, with the help of Shri P.N. Mehta and the Company, were able to retain possession of the land and take its advantage and usufruct for long period of seventeen years. 66. We find that in the name of imposing cost, the High Court has, in effect, awarded lump sum damages for unauthorised use and occupation of surplus land. Section 16 of the Ceiling Act empowers levy of damages for use and occupation of surplus land and reads thus :- "Section 16. Damages for use and occupation of surplus land where any tenure holder holds any land on or after the commencement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act 1972, in excess of the ceiling area applicable to him, he shall be liable to pay to the State Government for the period commencing from the first day of July 1973, until the date on which the Collector takes possession of such surplus land under Section 14, or the date in which the tenure holding voluntarily delivers possession to the Collector under the said sub-section, whichever is earlier, such compensation for use and occupation as may be prescribed." 67. The quantification of damages payable to the State for use and occupation of surplus land under Section 16 is required to be done in accordance with the principles laid down in rule 18A of the rules framed under the Ceiling Act. The provisions of Section 16 read with Section 18-A require separate proceedings to be undertaken for determination and quantification of amount of damages for use and occupation of the surplus land. The said exercise ought to have been left to the Ceiling authorities. The High Court, in our opinion, should not have awarded lump sum damages by imposing heavy costs. P.N. Mehta was found to have taken active part in formation of partnership firms and obtaining the transfers for favoured parties. He did it, not in his individual capacity but, as a managing partner of one of the partnership firms and on being invited by the holder Company in the meeting of the Board of Directors to help out the company from the effect of ceiling law. In the event of default of payment of costs by the company, the direction made by the High Court to Shri P,N, Mehta to pay the cost is not justified. This part of the order of the High Court imposing Rupees Ten Lacs as costs on the Farm and directing its payment by the Farm or by P.N. Mehta is liable to be set aside.68. Before parting with the case, only mention has to be made of the submissions made by the learned counsel appearing for subsequent transferees of the lands involved and by some of the interveners who claim to have been allotted some lands. In our opinion the subsequent transferees and such interveners deserve no indulgence in this appeal. The subsequent transferees have stepped into the shoes of the original transferees. They can claim no different or better rights than their transferors. The contentions raised on their behalf are, therefore, not entertained. No relief can be granted to them. The intervenors have to work out their independent rights and remedies, if any, and can claim no right of hearing in these appeals.
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jointly or singly either by the transferor or transferee. The transferee is the party likely to be adversely affected by the order nullifying the transfer if found to be lacking in good faith. The transferee is clearly covered by the expression "the party claiming its benefit" as used in Explanation (II)(6) of Section 5." The burden of proof in respect of bona fides of transfers is also on the person or party claiming its benefit. It was therefore necessary to make transferees as parties in the appeal and grant them opportunity of hearing by the appellate authority. To that extent the order of the appellate authority can be said to have been vitiated for not following the required procedure.60. For a different reason, however, we decline to set aside the appellate order of the Commissioner which has been confirmed by the High Court.of transferees as parties and denial of opportunity of hearing to them, in the facts and circumstances found here, cannot be said to be fatal to the entire ceilingHigh Court has in great detail critically examined all the relevant evidence produced by the transferees before arriving at an adverse conclusion against them. This Court would have been inclined and justified in making a remand of the case to the appellate authority to make all transferees as parties and give them opportunity of hearing in respect of the portions of land purchased by them from out of 250 acres of land held in the name of the school. Since, however, the High Court has already given full opportunity of hearing to the transferees on this aspect we refrain from making any order of remand just for the sake of completing a formality of granting them similar opportunity of hearing by the appellate authority with no likelihood of any conclusion different from the one reached by the High Court and this Court on merits of the case.Similarly in the instant case, it has been found that large scale transfers were effected to defeat Ceiling Law. We, therefore, decline to upset the concurrent findings of the appellate authority and the High Court in our discretionary powers under Article 136 of the Constitution. We have also come to the same conclusion that the transfers made after thedate were not in good faith hence liable to be ignored for determining the extent of surplus land with the holder. That apart we have also recorded a conclusion that the entire lands being held under a Govt. Grant were not transferable without permission of the government and they were invalid being in clear breach of the conditions of the Grant.64. Right of hearing to a necessary party is a valuable right. Denial or such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of Govt. Grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we, therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India.We find that in the name of imposing cost, the High Court has, in effect, awarded lump sum damages for unauthorised use and occupation of surplus land. Section 16 of the Ceiling Act empowers levy of damages for use and occupation of surplusThe quantification of damages payable to the State for use and occupation of surplus land under Section 16 is required to be done in accordance with the principles laid down in rule 18A of the rules framed under the Ceiling Act. The provisions of Section 16 read with Sectionrequire separate proceedings to be undertaken for determination and quantification of amount of damages for use and occupation of the surplus land. The said exercise ought to have been left to the Ceiling authorities. The High Court, in our opinion, should not have awarded lump sum damages by imposing heavy costs. P.N. Mehta was found to have taken active part in formation of partnership firms and obtaining the transfers for favoured parties. He did it, not in his individual capacity but, as a managing partner of one of the partnership firms and on being invited by the holder Company in the meeting of the Board of Directors to help out the company from the effect of ceiling law. In the event of default of payment of costs by the company, the direction made by the High Court to Shri P,N, Mehta to pay the cost is not justified. This part of the order of the High Court imposing Rupees Ten Lacs as costs on the Farm and directing its payment by the Farm or by P.N. Mehta is liable to be set aside.68. Before parting with the case, only mention has to be made of the submissions made by the learned counsel appearing for subsequent transferees of the lands involved and by some of the interveners who claim to have been allotted some lands. In our opinion the subsequent transferees and such interveners deserve no indulgence in this appeal. The subsequent transferees have stepped into the shoes of the original transferees. They can claim no different or better rights than their transferors. The contentions raised on their behalf are, therefore, not entertained. No relief can be granted to them. The intervenors have to work out their independent rights and remedies, if any, and can claim no right of hearing in these appeals.
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Hindustan Lever Ltd Vs. Ashok Vishnu Kate | as implied in Item 1 of Schedule IV. When a contemplated action on the part of the employer to dismiss or discharge an employee on any of the grounds mentioned in that item is firmly taken, the employee can as well show that this type of action on the part of the employer is a habitual action or by way of a general practice. But even apart from such a general practice, it can be alleged and demonstrated that the employer is following such a practice at least for the complainant. It is not as if a practice which is not repetitive in character can never amount to an unfair labour practice as contemplated by Schedule IV, Item 1. In fact, whether such an alleged practice should be based on repetitive acts or a single act is strictly not relevant for deciding the question whether an attempt towards commission of such a practice, when the final order of dismissal or discharge has not been passed, can be made subject-matter of the complaint under the Maharashtra Act. 51. Similarly, contention found in paragraph IV (ii) that the words `` discharge or dismissal mean the final order of sending away or removing a person also cannot be of any assistance to the appellant for the simple reason that we are not concerned with the connotation of the words ``dismiss or discharge. The question is whether an attempt towards ultimate dismissal or discharge by way of taking a firm step towards it can be the subject-matter of a complaint under the Maharashtra Act. For deciding that question the entire scheme of the Act becomes relevant including its preamble, as discussed earlier. No conclusion can be based only on the meaning of the words ``discharge or dismissal as tried to be suggested. Similarly, contention in sub-paragraph (vii) of paragraph IV relying on a decision of this Court in Bharat Iron Works v. B.B. Patel, 1976(2) SCR 280 is also of no assistance to the appellant as the said decision refers to the nature of proof required for proving the allegation of malafide or victimisation. That stage would come once the complaint on the ground of victimisation is taken up for consideration on merits at final hearing stage or at stage of interim relief, as the case may be. 52. The submission made in paragraph V(i) on the construction of the words ``is engaging in as found in Section 28 also cannot be countenanced for the simple reason that even in the said paragraph, it is mentioned that some of the unfair labour practices may be of continuing nature and for that purpose emphasis is placed on some of the items mentioned in Schedules II, III and IV. However, even from the scheme of the schedules it becomes clear that any present continuous act of engaging in the alleged unfair labour practice would be covered by the term ``is engaging in. We have already discussed in detail the correct connotation of these words in the earlier part of this judgment. For the reasons recorded by us therein, this submission is found to be devoid of any substance. In sub-paragraph (iii) of paragraph V, it is submitted that aim of prevention is achieved by : (a) directing the employer as an interim measure to withdraw the practice complained of and if the complaint is proved, in the final order of quashing the order of dismissal, and also (b) by prescribing a penalty which penalty is to act as a deterrent and prevent the commission of unfair labour practice. We fail to appreciate how this will affect the correct connotation of the word ``prevention. If the alleged unfair labour practice of discharge or dismissal of an employee is to be prevented, then as discussed earlier, it must necessarily contemplate an intervention of the competent Labour Court at a stage prior to the actual commission of such unfair labour practice. 53. Reference made in paragraph VI to the Bombay High Courts judgments also cannot be of any avail as they were based on the view which was accepted by the learned Single Judge of the High Court of Bombay at Nagpur which has rightly been overturned by the Division Bench of the Bombay High Court in the judgment under appeal on a correct interpretation of the relevant provision of the Act. Therefore, the earlier view taken by the learned Single Judges of the Bombay High Court cannot be said to be well-sustained. For all these reasons, the appellant has made out no case for our interference in this appeal.54. Before parting with this case, however, we must strike a note of caution, as has been done by the Division Bench of the Bombay High Court. It could not be gainsaid that the employers have a right to take disciplinary actions and to hold domestic enquiries against their erring employees. But for doing so, the standing orders governing the field have to be followed by such employers. These standing orders give sufficient protection to the concerned employees against whom such departmental enquiries are proceeded with. If such departmental proceedings initiated by serving of chargesheets are brought in challenge at different stages of such proceedings by the concerned employees invoking the relevant clauses of Item 1 of Schedule IV before the final orders of discharge or dismissal are passed, the Labour Court dealing with such complaint should not lightly interfere with such pending domestic enquiries against the concerned complainants. The Labour Court concerned should meticulously scan the allegations in the complaint and if necessary, get the necessary investigation made in the light of such complaint and only when a very strong prima facie case is made out by the complainant appropriate interim orders intercepting such domestic enquiries in exercise of powers under Section 30(2) can be passed by the Labour Courts. Such orders should not be passed for mere askance by the Labour Courts. Otherwise, the very purpose of holding domestic enquiries as per the standing orders would get frustrated. | 0[ds]If it is to be prevented, it has to be prevented from taking effect or getting completed. Therefore, the intervention of the Labour Court can be sought where the concerned general unfair labour practice on the part of the employer to discharge or dismiss an employee by way of victimisation has not resulted into its culmination but it is in pipeline or process. Under the standing orders governing the concerned industries, before an employee can be discharged or dismissed on the ground of any misconduct, departmental enquiry has to be held. Consequently, taking the initial step towards the direction of discharging or dismissing of any employee on the ground of any misconduct by issuing a charge sheet can be said to be the first action taken by the employer towards such ultimate discharge or dismissal of an employee. It can then be said that the process of alleged unfair labour practice on the part of the employer to discharge or dismiss an employee on ground (a) mentioned in Item 1 of Schedule IV is started or has got initiated or is triggered off by the employer. If an employee can make out a strong prima facie case for interdiction of such a process, he can legitimately invoke the jurisdiction of the Labour Court for preventing such an unfair labour practice from getting fructified or completed. In this connection, it is necessary to note that the general unfair labour practice on the part of the employers as mentioned in Item 1 of schedule IV pertains to different types of objectionable actions based on grounds which are indicative of unfair labour practices and any action based on such grounds with a view to discharge or dismiss an employee is considered by the Actto be an unfair labour practice on the part of the employer.19. The Division Bench of the High Court for coming to its conclusion has heavily relied upon the words ``to discharge or dismiss employees as found in Item 1 of Schedule IV. We find that the term ``to discharge or dismiss does indicate even attempted action towards such discharge or dismissal. In this connection, we may profitably refer to the meaning of the term ``to as found in various dictionaries as the said term is not defined by the Maharashtrais not possible to accept the contention of the learned counsel for the appellant that discharge or dismissal of any employee would only mean the confirmed act of discharge or dismissal on any of these grounds and not penultimate step taken by the employer concerned in that direction on that ground. Therefore, on the express language of Item 1 of Schedule IV the general unfair labour practice on the part of the employer ``to discharge or dismiss an employee on any of the listed grounds would include both the final act of discharge or dismissal of employee on any of these grounds as well as any penultimate step taken towards that destination and object by starting the process of disciplinary enquiry on giving the chargesheet to the employee and/or suspending an employee pending or in contemplation of such enquiry and all further steps during such departmental enquiry about which a complaint can be made on permissibleit is obvious that at the stage when such a shockingly disproportionate punishment is given, this clause would certainly get attracted, but that does not mean that it could not be demonstrated even earlier, if there are facts available in a case, that for a trifle or mere minor or negligible misconduct, the employer proposes to discharge or dismiss theit is not as if and when such a grievance is made, the Labour Court cannot be approached for preventing such an unfair labour practice from getting culminated and that the workman is to wait till such shockingly disproportionate punishment actually comes to be imposed. Then there would be nothing left to be prevented. It would be like bolting the doors of the stable after the horses have fled. We, therefore, hold that on the express language of Item 1 of Schedule IV complaint can be filed for the alleged unfair labour practice which is in the offing and towards which a firm step is taken by the employer. It is in the light of the aforesaid scheme of Item 1 of Schedule IV that we have to turn to the remaining relevant sections of thethere is total embargo on the unions of the employees as well as the employees and also on the employer on engaging in any unfair labour practice. Once it is found that Item 1 of Schedule IV covers general unfair labour practices on the part of the employer consisting of not only final discharge or dismissal of employee on any of the grounds mentioned in Item 1 but also any action taken by initiating the process towards such ultimate discharge or dismissal of the employee, Section 27 of the Maharashtra Act gets attracted even at a prior stage when such unfair labour practice is sought to be resorted to by the employer by engaging himself in such an unfair labour practice. In other words, to take an illustration, if it is alleged in a given case that the employer seeks to discharge or dismissal an employee by way of victimisation and for that purpose he has initiated the process of departmental enquiry by issuing the chargesheet to the employee concerned, the employee concerned can legitimately urge that the employer is guilty of such unfair labour practice in which he seeks to engage himself and, therefore, the prohibition enshrined in Section 27 gets squarely attracted against him. It is not as if that in such a case the employer can be said to have engaged himself in my unfair labour practice of discharging or dismissing the employee by way of victimisation only after the ultimate stage is reached and the order of discharge or dismissal sees the light of the day, The prohibition against engagement in any unfair labour practice as mentioned in Section 27 will cover all stages from the beginning to the end, when the process which is initiated by the concerned employer or the union in connection with the alleged unfair labour practice starts and ultimately terminates.It becomes, therefore, obvious that if an employer is alleged to be engaged in discharging any employee then even before the actual order of discharge is passed he can be said to be engaged in such discharge if it is shown that an attempt is made towards such a discharge with an intention to ultimately discharge the employee.33. We may also refer to Section 28(3), which empowers the concerned Court on receipt of the complaint under Section 28(1) to cause an investigation into the said complaint to be made by the investigating officer, if thought necessary and direct that a report in the matter may be submitted by him to the Court, within the period specified in the direction. Therefore, it is not as if that the moment a complaint is filed the Labour Court can mechanically pass an order intercepting the proceedings of any departmental enquiry. It can in appropriate cases even cause a preliminary enquiry about the correctness of the allegations in the complaint through the investigatingwe have already seen earlier, Item 1 of Schedule IV would cover in the sweep of general unfair labour practice on the part of the employer even the initiation of proceedings or taking any other firm step like suspension, towards discharge or dismissal of the employee concerned, which can be challenged on the grounds mentioned in Item 1 of Schedule IV . Such initiation of proceedings or firm steps themselves would be the occurrence of the alleged unfair labour practices and would give a cause of action to the complainant to file the complaint under Section 28(1) within the period of limitation as laid down therein. It is not as if that the occurrence of unfair labour practice can be only of one type, that is, the final order of discharge or dismissal as assumed by the learned counsel for theit cannot be said that the Division Bench of the Bombay High Court was not right when it took the view that the act of engaging in any unfair labour practice by itself is not an offence under the Maharashtra Act while such commission of unfair labour practice itself is an offence under the Industrial Disputes Act. However, this aspect is not much relevant for deciding the controversy with which we are concerned.As already discussed earlier, it is trite to say that if `to discharge or dismiss an employee by way of victimisation is a general unfair labour practice on the part of the employer as laid down by Item 1(a) of Schedule IV and if such an unfair labour practice is to be prevented then action for such prevention has to be taken prior to the ultimate commission of such unfair labour practice. It is difficult to agree with the contention of the learned counsel for the appellant that such prevention can be made only after the actual order of discharge or dismissal of the employee is passed. At that stage there is no question for preventing the commission of such unfair labour practice, but it would be a case of setting aside or quashing such already committed unfair labour practice. It is difficult to appreciate how a discharge or dismissal of an employee by way of victimisation can be prevented after such discharge or dismissal has already taken place. Once such an unfair labour practice is completed and if final order is to be set aside it would amount to curing the malady rather than preventing it. As the saying goes `prevention is better than cure, and that is the very purpose of the Act. Or in other words, prevention of commission of such unfair labour practice is the heart of the Act. The interpretation tried to be put by the learned counsel for the appellant on the relevant provisions of Item 1 of Schedule IV would result in stultifying the very purpose and scope of thebecomes obvious that if an employer files a complaint before the Industrial Court under Item 5 or 6 of Schedule III that the Union is seeking to stage, encourage or instigate such forms of coercive actions as wilful `go slow or seeks to demonstrate at the residence of employers and if such an action is to be prevented a complaint has to be filed before the actual demonstration takes place or actual `go slow policy is resorted to. Once such an action takes place there would remain no occasion to prevent such an action in good time. Consequently, on the same lines it cannot be said that unfair labour practice on the part of the employer also cannot be prevented till the actual unfair labour practice gets committed by him. We have also to keep in view that the Maharashtra Act is a social welfare legislation and in interpreting such a welfare legislation, such a construction should be placed on the relevant provisions which effectuates the purpose for which such legislation is enacted and does not efface its very purpose of prevention of unfair labour practice.Following the aforesaid rule of construction, therefore, we must hold that the interpretation of Item 1 of Schedule IV of the Maharashtra Act as canvassed by the learned counsel for the appellant and the intervenors would frustrate the very scope and ambit of the Maharashtra Act, in effectuating the prevention of the alleged unfair labour practice. While on the other hand, if a wider interpretation is placed on the relevant provisions of Item 1 of Schedule IV, as discussed earlier, apart from not straining the language which even may become permissible on the rule of purposive construction, the said construction would fructify the very purpose for which the Maharashtra Act was enacted.44. Before concluding this discussion, we may refer to the judgment of this Court in Chanan Singhs case (supra) on which strong reliance was placed by the learned counsel for the appellant. Sh. Pai submitted that when merely a show cause notice is issued for taking action against an employee, if it is challenged in the Court, it would be a premature challenge. We fail to appreciate how the aforesaid decision can be pressed in service by the learned counsel for interpreting the relevant provisions of Item 1 of Schedule IV of the Maharashtra Act. In the aforesaid decision, this Court held that when a show cause notice is issued against punishment, a writ petition under Articles 226 and 227 would be premature as there would be no grievance of punitive action which can be ventilated in the Court. This decision was based on the general principle that against mere show cause notice, writ petition would be premature. The ratio of that decision cannot be of any assistance for interpreting the express language of Item 1 of Schedule IV of the Maharashtra Act read with its other relevant provisions, which are meant to prevent the commission of unfair labour practice by arming the appropriate Courts with jurisdiction to look into such complaints. For all these reasons, therefore, it must be held that the Division Bench of the High Court was perfectly justified in taking the view that a contemplated action for dismissal or discharge of an employee on any of the grounds mentioned in Item 1 of Schedule IV of the Maharashtra Act could be made the subject-matter of complaint before the Labour Court under Section 28(1) of the Maharashtra Act. We have to keep in view the fact that the Maharashtra Act is in the field since more than two decades and even a Full Bench of the Industrial Court, Maharashtra by its unanimous decision dated September 28, 1984 had taken the same view and on that basis numerous complaints were entertained by the Labour Courts in Maharashtra over decades. It was only when a learned single Judge of the High Court sitting at Nagpur, by his decision dated April 27, 1989 struck a discordant note that the present controversy cropped up. In our view, no fault can be found with the reasoning adopted by the Division Bench of the Bombay High Court for overruling the said contrary decision of the learned Single Judge of the Bombay High Court sitting at Nagpur in Writ Petition No. 2607 ofeven a threat is considered to be an unfair labour practice as per this Item. While, the unfair labour practice mentioned in Item 1 of Schedule IV does not cover any threat but actual order of discharge or dismissal. It is not possible to agree. The reason is obvious. A mere threat to discharge or dismiss an employee if he joins a union by itself may be an unfair labour practice as per Item 1(a) of Schedule II though the threat might not have been translated into any attempt in the direction of discharge or dismissal. Still, such a threat would constitute unfair labour practice, which can be prevented by filing appropriate complaint before the Industrial Court under Section 5 read with section 28(1). But if the employer takes a concrete step towards discharging or dismissing an employee on any of the grounds contemplated by Item 1 of Schedule IV, then it would not be in the realm of mere threat but would be translated into an actual action of taking a calculated step towards such alleged contemplated unfair labour practice by serving chargesheet and starting departmental enquiry and/or putting the employee under suspension with the ultimate object in view. At that state the alleged unfair labour practice of engaging in discharging or dismissing the employee on the grounds contemplated in Item 1 of Schedule IV can be said to have taken place. It is obvious that if an employer merely threatens the employee to discharge him by way of victimisation etc. and such a threat is not followed by any attempt by way of starting departmental enquiry or taking any other concrete step as aforesaid, such a simplicitor threat would not get covered by Item 1 of Schedule IV. It would also not be covered by Item 1(a) of Schedule II, as it is not a threat to discharge or dismiss an employee if he joins a union. For the purpose of attracting Item 1 of Schedule IV, apart from mere threat, some concrete step like starting departmental enquiry has to be taken by the employer before such an action can be brought in challenge by the concerned employee on any of the grounds mentioned in Item 1 of Schedule IV. Consequently, merely because the legislature has not repeated the terminology of mere threat while enacting Items of Schedule IV, it would not mean that before the final order of discharge or dismissal is passed on any of these grounds mentioned in Item 1 of Schedule IV and only first step is taken in that direction, the unfair labour practice o discharge or dismiss such employee on any of these grounds mentioned in Item 1 of Schedule IV cannot be said to have taken place, or on that basis the complaint would be premature, as submitted by Shri Pai, learned senior counsel for thewe have discussed earlier, the word ``to would include any action towards the final goal of the action. Schedule IV, as noted earlier, speaks about the general unfair labour practice on the part of employers. Therein barring Item No. 9, everywhere we find the user of the Infinitive. Same is the case with the wording of Schedule II barring Item No. 6 and the wording of Scheduletaking into consideration the interpretation-aspect as also the grammar-aspect, I am of the view that it will not be proper to put a mere Literal Construction on the wording of Item 1 of Schedule IV to the Act. I have no doubt in my mind in observing that here the language is not plain. It does not admit of but one meaning. Therefore, one would be justified in adverting to the Mischief Rule also the Golden Rule while interpreting the words appearing in Item 1 of Schedule IV. I may further observe that in doing so, if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility. In such a situation we should rather accept the bolder construction based on the view that the legislature would legislate only for the purpose of bringing about an effective result. Further, as observed earlier, where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the Statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of theis true that the word ``practice connotes repeated events but that will not affect the construction to be placed on the words ``unfair labour practice to dismiss or discharge as implied in Item 1 of Schedule IV. When a contemplated action on the part of the employer to dismiss or discharge an employee on any of the grounds mentioned in that item is firmly taken, the employee can as well show that this type of action on the part of the employer is a habitual action or by way of a general practice. But even apart from such a general practice, it can be alleged and demonstrated that the employer is following such a practice at least for the complainant. It is not as if a practice which is not repetitive in character can never amount to an unfair labour practice as contemplated by Schedule IV, Itemdeciding that question the entire scheme of the Act becomes relevant including its preamble, as discussed earlier. No conclusion can be based only on the meaning of the words ``discharge or dismissal as tried to be suggested. Similarly, contention in sub-paragraph (vii) of paragraph IV relying on a decision of this Court in Bharat Iron Works v. B.B. Patel, 1976(2) SCR 280 is also of no assistance to the appellant as the said decision refers to the nature of proof required for proving the allegation of malafide or victimisation. That stage would come once the complaint on the ground of victimisation is taken up for consideration on merits at final hearing stage or at stage of interim relief, as the case may be.Reference made in paragraph VI to the Bombay High Courts judgments also cannot be of any avail as they were based on the view which was accepted by the learned Single Judge of the High Court of Bombay at Nagpur which has rightly been overturned by the Division Bench of the Bombay High Court in the judgment under appeal on a correct interpretation of the relevant provision of the Act. Therefore, the earlier view taken by the learned Single Judges of the Bombay High Court cannot be said to be well-sustained. For all these reasons, the appellant has made out no case for our interference in this appeal.54. Before parting with this case, however, we must strike a note of caution, as has been done by the Division Bench of the Bombay High Court. It could not be gainsaid that the employers have a right to take disciplinary actions and to hold domestic enquiries against their erring employees. But for doing so, the standing orders governing the field have to be followed by such employers. These standing orders give sufficient protection to the concerned employees against whom such departmental enquiries are proceeded with. If such departmental proceedings initiated by serving of chargesheets are brought in challenge at different stages of such proceedings by the concerned employees invoking the relevant clauses of Item 1 of Schedule IV before the final orders of discharge or dismissal are passed, the Labour Court dealing with such complaint should not lightly interfere with such pending domestic enquiries against the concerned complainants. The Labour Court concerned should meticulously scan the allegations in the complaint and if necessary, get the necessary investigation made in the light of such complaint and only when a very strong prima facie case is made out by the complainant appropriate interim orders intercepting such domestic enquiries in exercise of powers under Section 30(2) can be passed by the Labour Courts. Such orders should not be passed for mere askance by the Labour Courts. Otherwise, the very purpose of holding domestic enquiries as per the standing orders would get frustrated. | 0 | 14,147 | 4,018 | ### 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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as implied in Item 1 of Schedule IV. When a contemplated action on the part of the employer to dismiss or discharge an employee on any of the grounds mentioned in that item is firmly taken, the employee can as well show that this type of action on the part of the employer is a habitual action or by way of a general practice. But even apart from such a general practice, it can be alleged and demonstrated that the employer is following such a practice at least for the complainant. It is not as if a practice which is not repetitive in character can never amount to an unfair labour practice as contemplated by Schedule IV, Item 1. In fact, whether such an alleged practice should be based on repetitive acts or a single act is strictly not relevant for deciding the question whether an attempt towards commission of such a practice, when the final order of dismissal or discharge has not been passed, can be made subject-matter of the complaint under the Maharashtra Act. 51. Similarly, contention found in paragraph IV (ii) that the words `` discharge or dismissal mean the final order of sending away or removing a person also cannot be of any assistance to the appellant for the simple reason that we are not concerned with the connotation of the words ``dismiss or discharge. The question is whether an attempt towards ultimate dismissal or discharge by way of taking a firm step towards it can be the subject-matter of a complaint under the Maharashtra Act. For deciding that question the entire scheme of the Act becomes relevant including its preamble, as discussed earlier. No conclusion can be based only on the meaning of the words ``discharge or dismissal as tried to be suggested. Similarly, contention in sub-paragraph (vii) of paragraph IV relying on a decision of this Court in Bharat Iron Works v. B.B. Patel, 1976(2) SCR 280 is also of no assistance to the appellant as the said decision refers to the nature of proof required for proving the allegation of malafide or victimisation. That stage would come once the complaint on the ground of victimisation is taken up for consideration on merits at final hearing stage or at stage of interim relief, as the case may be. 52. The submission made in paragraph V(i) on the construction of the words ``is engaging in as found in Section 28 also cannot be countenanced for the simple reason that even in the said paragraph, it is mentioned that some of the unfair labour practices may be of continuing nature and for that purpose emphasis is placed on some of the items mentioned in Schedules II, III and IV. However, even from the scheme of the schedules it becomes clear that any present continuous act of engaging in the alleged unfair labour practice would be covered by the term ``is engaging in. We have already discussed in detail the correct connotation of these words in the earlier part of this judgment. For the reasons recorded by us therein, this submission is found to be devoid of any substance. In sub-paragraph (iii) of paragraph V, it is submitted that aim of prevention is achieved by : (a) directing the employer as an interim measure to withdraw the practice complained of and if the complaint is proved, in the final order of quashing the order of dismissal, and also (b) by prescribing a penalty which penalty is to act as a deterrent and prevent the commission of unfair labour practice. We fail to appreciate how this will affect the correct connotation of the word ``prevention. If the alleged unfair labour practice of discharge or dismissal of an employee is to be prevented, then as discussed earlier, it must necessarily contemplate an intervention of the competent Labour Court at a stage prior to the actual commission of such unfair labour practice. 53. Reference made in paragraph VI to the Bombay High Courts judgments also cannot be of any avail as they were based on the view which was accepted by the learned Single Judge of the High Court of Bombay at Nagpur which has rightly been overturned by the Division Bench of the Bombay High Court in the judgment under appeal on a correct interpretation of the relevant provision of the Act. Therefore, the earlier view taken by the learned Single Judges of the Bombay High Court cannot be said to be well-sustained. For all these reasons, the appellant has made out no case for our interference in this appeal.54. Before parting with this case, however, we must strike a note of caution, as has been done by the Division Bench of the Bombay High Court. It could not be gainsaid that the employers have a right to take disciplinary actions and to hold domestic enquiries against their erring employees. But for doing so, the standing orders governing the field have to be followed by such employers. These standing orders give sufficient protection to the concerned employees against whom such departmental enquiries are proceeded with. If such departmental proceedings initiated by serving of chargesheets are brought in challenge at different stages of such proceedings by the concerned employees invoking the relevant clauses of Item 1 of Schedule IV before the final orders of discharge or dismissal are passed, the Labour Court dealing with such complaint should not lightly interfere with such pending domestic enquiries against the concerned complainants. The Labour Court concerned should meticulously scan the allegations in the complaint and if necessary, get the necessary investigation made in the light of such complaint and only when a very strong prima facie case is made out by the complainant appropriate interim orders intercepting such domestic enquiries in exercise of powers under Section 30(2) can be passed by the Labour Courts. Such orders should not be passed for mere askance by the Labour Courts. Otherwise, the very purpose of holding domestic enquiries as per the standing orders would get frustrated.
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in Item 1 of Schedule IV. Consequently, merely because the legislature has not repeated the terminology of mere threat while enacting Items of Schedule IV, it would not mean that before the final order of discharge or dismissal is passed on any of these grounds mentioned in Item 1 of Schedule IV and only first step is taken in that direction, the unfair labour practice o discharge or dismiss such employee on any of these grounds mentioned in Item 1 of Schedule IV cannot be said to have taken place, or on that basis the complaint would be premature, as submitted by Shri Pai, learned senior counsel for thewe have discussed earlier, the word ``to would include any action towards the final goal of the action. Schedule IV, as noted earlier, speaks about the general unfair labour practice on the part of employers. Therein barring Item No. 9, everywhere we find the user of the Infinitive. Same is the case with the wording of Schedule II barring Item No. 6 and the wording of Scheduletaking into consideration the interpretation-aspect as also the grammar-aspect, I am of the view that it will not be proper to put a mere Literal Construction on the wording of Item 1 of Schedule IV to the Act. I have no doubt in my mind in observing that here the language is not plain. It does not admit of but one meaning. Therefore, one would be justified in adverting to the Mischief Rule also the Golden Rule while interpreting the words appearing in Item 1 of Schedule IV. I may further observe that in doing so, if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility. In such a situation we should rather accept the bolder construction based on the view that the legislature would legislate only for the purpose of bringing about an effective result. Further, as observed earlier, where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the Statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of theis true that the word ``practice connotes repeated events but that will not affect the construction to be placed on the words ``unfair labour practice to dismiss or discharge as implied in Item 1 of Schedule IV. When a contemplated action on the part of the employer to dismiss or discharge an employee on any of the grounds mentioned in that item is firmly taken, the employee can as well show that this type of action on the part of the employer is a habitual action or by way of a general practice. But even apart from such a general practice, it can be alleged and demonstrated that the employer is following such a practice at least for the complainant. It is not as if a practice which is not repetitive in character can never amount to an unfair labour practice as contemplated by Schedule IV, Itemdeciding that question the entire scheme of the Act becomes relevant including its preamble, as discussed earlier. No conclusion can be based only on the meaning of the words ``discharge or dismissal as tried to be suggested. Similarly, contention in sub-paragraph (vii) of paragraph IV relying on a decision of this Court in Bharat Iron Works v. B.B. Patel, 1976(2) SCR 280 is also of no assistance to the appellant as the said decision refers to the nature of proof required for proving the allegation of malafide or victimisation. That stage would come once the complaint on the ground of victimisation is taken up for consideration on merits at final hearing stage or at stage of interim relief, as the case may be.Reference made in paragraph VI to the Bombay High Courts judgments also cannot be of any avail as they were based on the view which was accepted by the learned Single Judge of the High Court of Bombay at Nagpur which has rightly been overturned by the Division Bench of the Bombay High Court in the judgment under appeal on a correct interpretation of the relevant provision of the Act. Therefore, the earlier view taken by the learned Single Judges of the Bombay High Court cannot be said to be well-sustained. For all these reasons, the appellant has made out no case for our interference in this appeal.54. Before parting with this case, however, we must strike a note of caution, as has been done by the Division Bench of the Bombay High Court. It could not be gainsaid that the employers have a right to take disciplinary actions and to hold domestic enquiries against their erring employees. But for doing so, the standing orders governing the field have to be followed by such employers. These standing orders give sufficient protection to the concerned employees against whom such departmental enquiries are proceeded with. If such departmental proceedings initiated by serving of chargesheets are brought in challenge at different stages of such proceedings by the concerned employees invoking the relevant clauses of Item 1 of Schedule IV before the final orders of discharge or dismissal are passed, the Labour Court dealing with such complaint should not lightly interfere with such pending domestic enquiries against the concerned complainants. The Labour Court concerned should meticulously scan the allegations in the complaint and if necessary, get the necessary investigation made in the light of such complaint and only when a very strong prima facie case is made out by the complainant appropriate interim orders intercepting such domestic enquiries in exercise of powers under Section 30(2) can be passed by the Labour Courts. Such orders should not be passed for mere askance by the Labour Courts. Otherwise, the very purpose of holding domestic enquiries as per the standing orders would get frustrated.
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The Associated Cement Companies Limited Vs. Associated Cement Staff Union | of following management policy. At the prima facie stage the Industrial Court was of the view that no case of malafides has been established. Therefore, at this stage it was not possible to hold that there was a breach of item-3 of Schedule-IV.9.In Item -9 of Schedule-IV the unfair labour practice consists of a breach of a settlement or agreement. Now it is settled law that compliance of mandatory provisions of the Industrial Disputes Act is an implied term of a contract of employment. The question, therefore arises as to whether prima facie there was material before the Industrial Court to show that there was a breach of section 9-A of the Industrial Disputes Act, 1947.10.The conditions of service for which a notice of change is required under section 9-A are spelt out in the fourth schedule Item 11 of the fourth Schedule reads as follows:-"Any increases or reduction (other than casual) in the number of persons employed or to be employed in any occupation or process or department or shift, (not occasioned by circumstances over which the employer has no control)."11.Item-11 requires an increase or reduction in the number of persons employed or to be employed in any occupation, department or shift. Now it is a settled position of law that before the provisions of section 9-A are attracted the change which is proposed by the employer must be such as would adversely affect the conditions of service of the workmen. The Supreme Court in Hindustan Lever Ltd. Vs.Ram Mohan Ray and Ors. AIR 1973 Supreme Court 1156 while interpreting Item 11 of Schedule-IV observed that:-"As regards item 11 it was urged that as one department out of three has been abolished,this item applies. Though to bring the matter under this item the workmen are not required to show that there is increase in the workload,it must be remembered that the 4th Schedule relates to conditions of service for change of which notice is to given and Section 9-A requires the employer to give notice under that section to the workmen likely to be affected by such change.The word affected in the circumstances could only refer to the workers being adversely effected and unless it could be shown that the abolition of one department has adversely effected the workers it cannot be brought under item 11." (emphasis supplied)12.Now so far as the complainant workmen are concerned, once it is held that transferability is prima facie an incident of service it is impossible to deduce as to how the Tribunal could surmise that the transferred workmen would be adversely affected by an order of transfer. Apart from this the learned counsel appearing on behalf of the management placed reliance upon (Amrit Banaspati Co.Ltd. Vs. S.Taki Bilgrami and Ors. 1997 (II) LLJ 317) in support of his submissions13.It is not necessary for the Court to express a conclusive view on any aspect of the case since the trial of the complaint is still to take place before the Industrial Court. Prima facie, however, having regard to the judgments of the Supreme Court construing Section 9-A, particularly in Hindustan Lever Ltd. Vs. Ram Mohan Ray and Ors. AIR 1973 Supreme Court 1156 it is not possible to accept the submission that a mere an order of transfer would affect adversely the workmen concerned where transferability is a condition of service.14.While the Industrial Tribunal has jurisdiction to grant interim orders, such orders ought not to be passed as a matter of course unless a prima facie case is made out in regard to the commission of an unfair labour practice. On the findings which the Industrial Court recorded the commission of unfair labour practices could not have been inferred at the interim stage. The finding in regard to the breach of section 9-A is prima facie unsustainable. Consistent with the parameters of the writ jurisdiction under Articles 226 and 227 of the Constitution, the interference of the learned Single Judge in the present case was warranted in order to correct a manifest error on the part of the Industrial Court. So far as the submissions urged on behalf of the respondents are concerned, the mere fact that the management has issued a notice of voluntary retirement on 4/2/2009 at all cement plants in the country would not at the interim stage furnish a ground for interfering with the order of transfer. It is for the management to determine how its work force should be deployed. The reasons indicated by the management, relating to a reduction in the work of the Share Department over a period of time, cannot be regarded as extraneous or colourable, in any event at the interim stage. Reliance was the placed on the evidence adduced on behalf of the management in an earlier complaint of unfair labour practices. Those proceedings arose out of the introduction of the S.A.P. technology by the management. The Industrial Court had injuncted the management from introducing or implementing the S.A.P. system till the disposal of the complaint or until a notice of change was issued under section 9-A.This Court while setting aside the order of Industrial Court by its order dated 3.4.2007 passed in Writ Petition no.1287/2007 directed that the management shall not effect retrenchment of any employee on the ground that the workman is rendered surplus as a result of S.A.P. technology and no workman shall be redeployed or transferred without prior permission of the Industrial Court. It was in the context of the allegations in that complaint that the evidence which was adduced on behalf of the management would have to be read. In any event the evidence in the earlier complaint was adduced some time in August, 2008 while the impugned order was issued much thereafter in the month of January, 2009. The management is entitled to demonstrate at the trial the change in circumstances as of January, 2009. The trial of the complaint is still to take place after evidence is adduced in the complaint on behalf of the workmen. | 1[ds]8.In evaluating the rival contentions of the learned counsel it would be necessary to emphasise that the Industrial Court allowed an application for the grant of interim relief in the complaint of unfair labour practices which arises out of the orders of transfer served by the employer on the employees concerned. Undoubtedly the Industrial Court has jurisdiction to pass interim orders under section 30(2) of the M.R.T.U.and P.U.L.P. Act, 1971. The complaint invokes items 3 and 9 of Schedule IV. Underthe unfair labour practice consists in the transfer of an employeemalafide from one place to another in the guise of following management policy. At the prima facie stage the Industrial Court was of the view that no case of malafides has been established. Therefore, at this stage it was not possible to hold that there was a breach ofIn ItemIV the unfair labour practice consists of a breach of a settlement or agreement. Now it is settled law that compliance of mandatory provisions of the Industrial Disputes Act is an implied term of a contract ofso far as the complainant workmen are concerned, once it is held that transferability is prima facie an incident of service it is impossible to deduce as to how the Tribunal could surmise that the transferred workmen would be adversely affected by an order of transfer. Apart from this the learned counsel appearing on behalf of the management placed reliance upon (Amrit Banaspati Co.Ltd. Vs. S.Taki Bilgrami and Ors. 1997 (II) LLJ 317) in support of his submissions13.It is not necessary for the Court to express a conclusive view on any aspect of the case since the trial of the complaint is still to take place before the Industrial Court. Prima facie, however, having regard to the judgments of the Supreme Court construing Sectionparticularly in Hindustan Lever Ltd. Vs. Ram Mohan Ray and Ors. AIR 1973 Supreme Court 1156 it is not possible to accept the submission that a mere an order of transfer would affect adversely the workmen concerned where transferability is a condition of service.14.While the Industrial Tribunal has jurisdiction to grant interim orders, such orders ought not to be passed as a matter of course unless a prima facie case is made out in regard to the commission of an unfair labour practice. On the findings which the Industrial Court recorded the commission of unfair labour practices could not have been inferred at the interim stage. The finding in regard to the breach of sectionis prima facie unsustainable. Consistent with the parameters of the writ jurisdiction under Articles 226 and 227 of the Constitution, the interference of the learned Single Judge in the present case was warranted in order to correct a manifest error on the part of the Industrial Court. So far as the submissions urged on behalf of the respondents are concerned, the mere fact that the management has issued a notice of voluntary retirement on 4/2/2009 at all cement plants in the country would not at the interim stage furnish a ground for interfering with the order of transfer. It is for the management to determine how its work force should be deployed. The reasons indicated by the management, relating to a reduction in the work of the Share Department over a period of time, cannot be regarded as extraneous or colourable, in any event at the interimwas the placed on the evidence adduced on behalf of the management in an earlier complaint of unfair labour practices. Those proceedings arose out of the introduction of the S.A.P. technology by the management. The Industrial Court had injuncted the management from introducing or implementing the S.A.P. system till the disposal of the complaint or until a notice of change was issued under sectionCourt while setting aside the order of Industrial Court by its order dated 3.4.2007 passed in Writ Petition no.1287/2007 directed that the management shall not effect retrenchment of any employee on the ground that the workman is rendered surplus as a result of S.A.P. technology and no workman shall be redeployed or transferred without prior permission of the Industrial Court. It was in the context of the allegations in that complaint that the evidence which was adduced on behalf of the management would have to be read. In any event the evidence in the earlier complaint was adduced some time in August, 2008 while the impugned order was issued much thereafter in the month of January, 2009. The management is entitled to demonstrate at the trial the change in circumstances as of January, 2009. The trial of the complaint is still to take place after evidence is adduced in the complaint on behalf of the workmen. | 1 | 2,560 | 832 | ### 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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of following management policy. At the prima facie stage the Industrial Court was of the view that no case of malafides has been established. Therefore, at this stage it was not possible to hold that there was a breach of item-3 of Schedule-IV.9.In Item -9 of Schedule-IV the unfair labour practice consists of a breach of a settlement or agreement. Now it is settled law that compliance of mandatory provisions of the Industrial Disputes Act is an implied term of a contract of employment. The question, therefore arises as to whether prima facie there was material before the Industrial Court to show that there was a breach of section 9-A of the Industrial Disputes Act, 1947.10.The conditions of service for which a notice of change is required under section 9-A are spelt out in the fourth schedule Item 11 of the fourth Schedule reads as follows:-"Any increases or reduction (other than casual) in the number of persons employed or to be employed in any occupation or process or department or shift, (not occasioned by circumstances over which the employer has no control)."11.Item-11 requires an increase or reduction in the number of persons employed or to be employed in any occupation, department or shift. Now it is a settled position of law that before the provisions of section 9-A are attracted the change which is proposed by the employer must be such as would adversely affect the conditions of service of the workmen. The Supreme Court in Hindustan Lever Ltd. Vs.Ram Mohan Ray and Ors. AIR 1973 Supreme Court 1156 while interpreting Item 11 of Schedule-IV observed that:-"As regards item 11 it was urged that as one department out of three has been abolished,this item applies. Though to bring the matter under this item the workmen are not required to show that there is increase in the workload,it must be remembered that the 4th Schedule relates to conditions of service for change of which notice is to given and Section 9-A requires the employer to give notice under that section to the workmen likely to be affected by such change.The word affected in the circumstances could only refer to the workers being adversely effected and unless it could be shown that the abolition of one department has adversely effected the workers it cannot be brought under item 11." (emphasis supplied)12.Now so far as the complainant workmen are concerned, once it is held that transferability is prima facie an incident of service it is impossible to deduce as to how the Tribunal could surmise that the transferred workmen would be adversely affected by an order of transfer. Apart from this the learned counsel appearing on behalf of the management placed reliance upon (Amrit Banaspati Co.Ltd. Vs. S.Taki Bilgrami and Ors. 1997 (II) LLJ 317) in support of his submissions13.It is not necessary for the Court to express a conclusive view on any aspect of the case since the trial of the complaint is still to take place before the Industrial Court. Prima facie, however, having regard to the judgments of the Supreme Court construing Section 9-A, particularly in Hindustan Lever Ltd. Vs. Ram Mohan Ray and Ors. AIR 1973 Supreme Court 1156 it is not possible to accept the submission that a mere an order of transfer would affect adversely the workmen concerned where transferability is a condition of service.14.While the Industrial Tribunal has jurisdiction to grant interim orders, such orders ought not to be passed as a matter of course unless a prima facie case is made out in regard to the commission of an unfair labour practice. On the findings which the Industrial Court recorded the commission of unfair labour practices could not have been inferred at the interim stage. The finding in regard to the breach of section 9-A is prima facie unsustainable. Consistent with the parameters of the writ jurisdiction under Articles 226 and 227 of the Constitution, the interference of the learned Single Judge in the present case was warranted in order to correct a manifest error on the part of the Industrial Court. So far as the submissions urged on behalf of the respondents are concerned, the mere fact that the management has issued a notice of voluntary retirement on 4/2/2009 at all cement plants in the country would not at the interim stage furnish a ground for interfering with the order of transfer. It is for the management to determine how its work force should be deployed. The reasons indicated by the management, relating to a reduction in the work of the Share Department over a period of time, cannot be regarded as extraneous or colourable, in any event at the interim stage. Reliance was the placed on the evidence adduced on behalf of the management in an earlier complaint of unfair labour practices. Those proceedings arose out of the introduction of the S.A.P. technology by the management. The Industrial Court had injuncted the management from introducing or implementing the S.A.P. system till the disposal of the complaint or until a notice of change was issued under section 9-A.This Court while setting aside the order of Industrial Court by its order dated 3.4.2007 passed in Writ Petition no.1287/2007 directed that the management shall not effect retrenchment of any employee on the ground that the workman is rendered surplus as a result of S.A.P. technology and no workman shall be redeployed or transferred without prior permission of the Industrial Court. It was in the context of the allegations in that complaint that the evidence which was adduced on behalf of the management would have to be read. In any event the evidence in the earlier complaint was adduced some time in August, 2008 while the impugned order was issued much thereafter in the month of January, 2009. The management is entitled to demonstrate at the trial the change in circumstances as of January, 2009. The trial of the complaint is still to take place after evidence is adduced in the complaint on behalf of the workmen.
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### Explanation:
8.In evaluating the rival contentions of the learned counsel it would be necessary to emphasise that the Industrial Court allowed an application for the grant of interim relief in the complaint of unfair labour practices which arises out of the orders of transfer served by the employer on the employees concerned. Undoubtedly the Industrial Court has jurisdiction to pass interim orders under section 30(2) of the M.R.T.U.and P.U.L.P. Act, 1971. The complaint invokes items 3 and 9 of Schedule IV. Underthe unfair labour practice consists in the transfer of an employeemalafide from one place to another in the guise of following management policy. At the prima facie stage the Industrial Court was of the view that no case of malafides has been established. Therefore, at this stage it was not possible to hold that there was a breach ofIn ItemIV the unfair labour practice consists of a breach of a settlement or agreement. Now it is settled law that compliance of mandatory provisions of the Industrial Disputes Act is an implied term of a contract ofso far as the complainant workmen are concerned, once it is held that transferability is prima facie an incident of service it is impossible to deduce as to how the Tribunal could surmise that the transferred workmen would be adversely affected by an order of transfer. Apart from this the learned counsel appearing on behalf of the management placed reliance upon (Amrit Banaspati Co.Ltd. Vs. S.Taki Bilgrami and Ors. 1997 (II) LLJ 317) in support of his submissions13.It is not necessary for the Court to express a conclusive view on any aspect of the case since the trial of the complaint is still to take place before the Industrial Court. Prima facie, however, having regard to the judgments of the Supreme Court construing Sectionparticularly in Hindustan Lever Ltd. Vs. Ram Mohan Ray and Ors. AIR 1973 Supreme Court 1156 it is not possible to accept the submission that a mere an order of transfer would affect adversely the workmen concerned where transferability is a condition of service.14.While the Industrial Tribunal has jurisdiction to grant interim orders, such orders ought not to be passed as a matter of course unless a prima facie case is made out in regard to the commission of an unfair labour practice. On the findings which the Industrial Court recorded the commission of unfair labour practices could not have been inferred at the interim stage. The finding in regard to the breach of sectionis prima facie unsustainable. Consistent with the parameters of the writ jurisdiction under Articles 226 and 227 of the Constitution, the interference of the learned Single Judge in the present case was warranted in order to correct a manifest error on the part of the Industrial Court. So far as the submissions urged on behalf of the respondents are concerned, the mere fact that the management has issued a notice of voluntary retirement on 4/2/2009 at all cement plants in the country would not at the interim stage furnish a ground for interfering with the order of transfer. It is for the management to determine how its work force should be deployed. The reasons indicated by the management, relating to a reduction in the work of the Share Department over a period of time, cannot be regarded as extraneous or colourable, in any event at the interimwas the placed on the evidence adduced on behalf of the management in an earlier complaint of unfair labour practices. Those proceedings arose out of the introduction of the S.A.P. technology by the management. The Industrial Court had injuncted the management from introducing or implementing the S.A.P. system till the disposal of the complaint or until a notice of change was issued under sectionCourt while setting aside the order of Industrial Court by its order dated 3.4.2007 passed in Writ Petition no.1287/2007 directed that the management shall not effect retrenchment of any employee on the ground that the workman is rendered surplus as a result of S.A.P. technology and no workman shall be redeployed or transferred without prior permission of the Industrial Court. It was in the context of the allegations in that complaint that the evidence which was adduced on behalf of the management would have to be read. In any event the evidence in the earlier complaint was adduced some time in August, 2008 while the impugned order was issued much thereafter in the month of January, 2009. The management is entitled to demonstrate at the trial the change in circumstances as of January, 2009. The trial of the complaint is still to take place after evidence is adduced in the complaint on behalf of the workmen.
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Lourdes Sty.Snehanjali Girls Hostel&Anr Vs. M/S H & R Jhonson(I) Ltd | a consumer in terms of the definition under Section 2(d) of the Consumer Protection Act, 1986 as the purchase of tiles and laying in the same in the rooms of the girl?s hostel run by the appellant-Society is clearly not for any commercial purpose. The decision in M/s Kusumam Hotels Pvt. Ltd. case (supra) has no application to the present fact situation for the reason that in the said case complainant was a hotel and the tiles purchased by the hotel were for commercial purpose as the hotel business involves the act of profit making, whereas in the instant case the girl?s hostel in question is run by the appellant-Society as one among its various charitable activities for the benefit of adivasi students. The appellant-Society is supporting adivasi/tribal girls to pursue their education by providing hostel facilities. The expenses for the food and electricity are being paid by the inmates of the hostel. The appellant-Society is maintaining the hostel free of cost and no charges in the form of rent, repairs and maintenance are collected from the inmates. Thus, the appellant-Society cannot be considered as any commercial establishment striving for profit.21. Further, the National Commission while passing the impugned order has ignored certain facts which throws light on callous attitude on the part of the respondents viz., when the defect in the tiles were brought to the notice of the respondents by sending various letters, there was no action on their part. Later a local agent on behalf of the respondent no.1-Company visited the premises of the girl?s hostel and verified that the said tiles were defective and damaged. However, no proper attention was paid by the respondents towards the issue. Further, to assess the damage caused to the appellant-Society by the use of the said defective tiles, a registered architect and interior designer, J.M. Vimawala was hired by the appellant-Society, who in his report declared the tiles to be defective and assessed the damage to the appellant-Society to the tune of Rs.4,27,712.37. Thereafter, the appellant-Society made a demand of the said amount as damages from the respondents vide legal notice dated 12.08.2002. But the respondents did not pay any heed to the said notice as well. Because of such irresponsible and indifferent attitude on the part of the respondents, the appellant-Society was compelled to file Consumer Complaint No. 743 of 2002 before the District Forum.22. The District Forum, after appreciating the pleadings and evidence on record has rightly awarded Rs. 2 lakhs as damages to the appellant-Society towards defective tiles supplied by the respondents along with compensation towards mental harassment and cost of present proceedings with interest @9% p.a. from the date of complaint till its recovery. In concurring with the findings of the District Forum, the State Commission, after proper re-appreciation of the facts and evidence on record has rightly exercised its jurisdiction by dismissing the appeal of the respondents. The National Commission should not have interfered with the concurrent findings of fact recorded in the judgment impugned before it particularly having regard to the nature of the jurisdiction conferred upon it by Section 21 of the Consumer Protection Act, 1986. Section 21 of the aforesaid Act reads thus: ?21. Jurisdiction of the National Commission.? Subject to the other provisions of this Act, the National Commission shall have jurisdiction? (a) to entertain? (i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one crore; and (ii) appeals against the orders of any State Commission; and (b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.? 23. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons. The National Commission has reversed the order passed by the State Commission by wrongly applying the decision of M/s Kusumam Hotels Pvt. Ltd. case (supra) to the set of facts in the present case. In the said case, the complainant was a hotel, it was considered to be a commercial entity and therefore, it was kept out of the purview of the definition of ?consumer? under Section 2(d) of the Consumer Protection Act, 1986. However, the National Commission has failed to appreciate the fact that in the present case, the appellant-Society is not a commercial establishment rather a registered society helping the adivasi students in their education by providing hostel facilities. The charges, if any, for accommodation in the hostel are for maintaining the hostel and not for making profit. Thus, the appellant-Society is consumer within the meaning of the term ?consumer? under Section 2(d) of the Consumer Protection Act, 1986. The National Commission has erroneously accepted the contention urged on behalf of the respondents in the revisional proceedings that supply of tiles to the appellant-Society by respondent no. 1 through its local agent is for commercial purpose. The said finding is based on the decision in M/s Kusumam Hotels Pvt. Ltd. case (supra), which case absolutely has no application to the fact situation.24. Therefore, the concurrent finding of fact recorded by the District and the State Commission has been erroneously interfered with by the National Commission by passing the impugned order, which is liable to be set aside. For the aforesaid reasons, the appeal of the appellant-Society must succeed. | 1[ds]19. The facts of the instant case clearly reveal that the National Commission has erred in observing that theis a commercial establishment by completely ignoring the Memorandum of Association and byelaws of theBoth the District Forum as well as the State Commission have rightly held that theis a charitable institution and not a commercial entity.The National Commission has erred by applying the decision in M/s Kusumam Hotels Pvt. Ltd. case (supra) in holding that theis not a consumer in terms of the definition under Section 2(d) of the Consumer Protection Act, 1986 as the purchase of tiles and laying in the same in the rooms of the girl?s hostel run by theis clearly not for any commercial purpose. The decision in M/s Kusumam Hotels Pvt. Ltd. case (supra) has no application to the present fact situation for the reason that in the said case complainant was a hotel and the tiles purchased by the hotel were for commercial purpose as the hotel business involves the act of profit making, whereas in the instant case the girl?s hostel in question is run by theas one among its various charitable activities for the benefit of adivasi students. Theis supporting adivasi/tribal girls to pursue their education by providing hostel facilities. The expenses for the food and electricity are being paid by the inmates of the hostel. Theis maintaining the hostel free of cost and no charges in the form of rent, repairs and maintenance are collected from the inmates. Thus, thecannot be considered as any commercial establishment striving for profit.21. Further, the National Commission while passing the impugned order has ignored certain facts which throws light on callous attitude on the part of the respondents viz., when the defect in the tiles were brought to the notice of the respondents by sending various letters, there was no action on their part. Later a local agent on behalf of the respondentvisited the premises of the girl?s hostel and verified that the said tiles were defective and damaged. However, no proper attention was paid by the respondents towards the issue. Further, to assess the damage caused to theby the use of the said defective tiles, a registered architect and interior designer, J.M. Vimawala was hired by thewho in his report declared the tiles to be defective and assessed the damage to theto the tune of Rs.4,27,712.37. Thereafter, themade a demand of the said amount as damages from the respondents vide legal notice dated 12.08.2002. But the respondents did not pay any heed to the said notice as well. Because of such irresponsible and indifferent attitude on the part of the respondents, thewas compelled to file Consumer Complaint No. 743 of 2002 before the District Forum.22. The District Forum, after appreciating the pleadings and evidence on record has rightly awarded Rs. 2 lakhs as damages to thetowards defective tiles supplied by the respondents along with compensation towards mental harassment and cost of present proceedings with interest @9% p.a. from the date of complaint till its recovery. In concurring with the findings of the District Forum, the State Commission, after properof the facts and evidence on record has rightly exercised its jurisdiction by dismissing the appeal of the respondents. The National Commission should not have interfered with the concurrent findings of fact recorded in the judgment impugned before it particularly having regard to the nature of the jurisdiction conferred upon it by Section 21 of the Consumer Protection Act, 1986.The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons. The National Commission has reversed the order passed by the State Commission by wrongly applying the decision of M/s Kusumam Hotels Pvt. Ltd. case (supra) to the set of facts in the present case. In the said case, the complainant was a hotel, it was considered to be a commercial entity and therefore, it was kept out of the purview of the definition ofunder Section 2(d) of the Consumer Protection Act, 1986. However, the National Commission has failed to appreciate the fact that in the present case, theis not a commercial establishment rather a registered society helping the adivasi students in their education by providing hostel facilities. The charges, if any, for accommodation in the hostel are for maintaining the hostel and not for making profit. Thus, theis consumer within the meaning of the termunder Section 2(d) of the Consumer Protection Act, 1986. The National Commission has erroneously accepted the contention urged on behalf of the respondents in the revisional proceedings that supply of tiles to theby respondent no. 1 through its local agent is for commercial purpose. The said finding is based on the decision in M/s Kusumam Hotels Pvt. Ltd. case (supra), which case absolutely has no application to the fact situation.24. Therefore, the concurrent finding of fact recorded by the District and the State Commission has been erroneously interfered with by the National Commission by passing the impugned order, which is liable to be set aside. For the aforesaid reasons, the appeal of the | 1 | 2,769 | 1,000 | ### 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:
a consumer in terms of the definition under Section 2(d) of the Consumer Protection Act, 1986 as the purchase of tiles and laying in the same in the rooms of the girl?s hostel run by the appellant-Society is clearly not for any commercial purpose. The decision in M/s Kusumam Hotels Pvt. Ltd. case (supra) has no application to the present fact situation for the reason that in the said case complainant was a hotel and the tiles purchased by the hotel were for commercial purpose as the hotel business involves the act of profit making, whereas in the instant case the girl?s hostel in question is run by the appellant-Society as one among its various charitable activities for the benefit of adivasi students. The appellant-Society is supporting adivasi/tribal girls to pursue their education by providing hostel facilities. The expenses for the food and electricity are being paid by the inmates of the hostel. The appellant-Society is maintaining the hostel free of cost and no charges in the form of rent, repairs and maintenance are collected from the inmates. Thus, the appellant-Society cannot be considered as any commercial establishment striving for profit.21. Further, the National Commission while passing the impugned order has ignored certain facts which throws light on callous attitude on the part of the respondents viz., when the defect in the tiles were brought to the notice of the respondents by sending various letters, there was no action on their part. Later a local agent on behalf of the respondent no.1-Company visited the premises of the girl?s hostel and verified that the said tiles were defective and damaged. However, no proper attention was paid by the respondents towards the issue. Further, to assess the damage caused to the appellant-Society by the use of the said defective tiles, a registered architect and interior designer, J.M. Vimawala was hired by the appellant-Society, who in his report declared the tiles to be defective and assessed the damage to the appellant-Society to the tune of Rs.4,27,712.37. Thereafter, the appellant-Society made a demand of the said amount as damages from the respondents vide legal notice dated 12.08.2002. But the respondents did not pay any heed to the said notice as well. Because of such irresponsible and indifferent attitude on the part of the respondents, the appellant-Society was compelled to file Consumer Complaint No. 743 of 2002 before the District Forum.22. The District Forum, after appreciating the pleadings and evidence on record has rightly awarded Rs. 2 lakhs as damages to the appellant-Society towards defective tiles supplied by the respondents along with compensation towards mental harassment and cost of present proceedings with interest @9% p.a. from the date of complaint till its recovery. In concurring with the findings of the District Forum, the State Commission, after proper re-appreciation of the facts and evidence on record has rightly exercised its jurisdiction by dismissing the appeal of the respondents. The National Commission should not have interfered with the concurrent findings of fact recorded in the judgment impugned before it particularly having regard to the nature of the jurisdiction conferred upon it by Section 21 of the Consumer Protection Act, 1986. Section 21 of the aforesaid Act reads thus: ?21. Jurisdiction of the National Commission.? Subject to the other provisions of this Act, the National Commission shall have jurisdiction? (a) to entertain? (i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one crore; and (ii) appeals against the orders of any State Commission; and (b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.? 23. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons. The National Commission has reversed the order passed by the State Commission by wrongly applying the decision of M/s Kusumam Hotels Pvt. Ltd. case (supra) to the set of facts in the present case. In the said case, the complainant was a hotel, it was considered to be a commercial entity and therefore, it was kept out of the purview of the definition of ?consumer? under Section 2(d) of the Consumer Protection Act, 1986. However, the National Commission has failed to appreciate the fact that in the present case, the appellant-Society is not a commercial establishment rather a registered society helping the adivasi students in their education by providing hostel facilities. The charges, if any, for accommodation in the hostel are for maintaining the hostel and not for making profit. Thus, the appellant-Society is consumer within the meaning of the term ?consumer? under Section 2(d) of the Consumer Protection Act, 1986. The National Commission has erroneously accepted the contention urged on behalf of the respondents in the revisional proceedings that supply of tiles to the appellant-Society by respondent no. 1 through its local agent is for commercial purpose. The said finding is based on the decision in M/s Kusumam Hotels Pvt. Ltd. case (supra), which case absolutely has no application to the fact situation.24. Therefore, the concurrent finding of fact recorded by the District and the State Commission has been erroneously interfered with by the National Commission by passing the impugned order, which is liable to be set aside. For the aforesaid reasons, the appeal of the appellant-Society must succeed.
### Response:
1
### Explanation:
19. The facts of the instant case clearly reveal that the National Commission has erred in observing that theis a commercial establishment by completely ignoring the Memorandum of Association and byelaws of theBoth the District Forum as well as the State Commission have rightly held that theis a charitable institution and not a commercial entity.The National Commission has erred by applying the decision in M/s Kusumam Hotels Pvt. Ltd. case (supra) in holding that theis not a consumer in terms of the definition under Section 2(d) of the Consumer Protection Act, 1986 as the purchase of tiles and laying in the same in the rooms of the girl?s hostel run by theis clearly not for any commercial purpose. The decision in M/s Kusumam Hotels Pvt. Ltd. case (supra) has no application to the present fact situation for the reason that in the said case complainant was a hotel and the tiles purchased by the hotel were for commercial purpose as the hotel business involves the act of profit making, whereas in the instant case the girl?s hostel in question is run by theas one among its various charitable activities for the benefit of adivasi students. Theis supporting adivasi/tribal girls to pursue their education by providing hostel facilities. The expenses for the food and electricity are being paid by the inmates of the hostel. Theis maintaining the hostel free of cost and no charges in the form of rent, repairs and maintenance are collected from the inmates. Thus, thecannot be considered as any commercial establishment striving for profit.21. Further, the National Commission while passing the impugned order has ignored certain facts which throws light on callous attitude on the part of the respondents viz., when the defect in the tiles were brought to the notice of the respondents by sending various letters, there was no action on their part. Later a local agent on behalf of the respondentvisited the premises of the girl?s hostel and verified that the said tiles were defective and damaged. However, no proper attention was paid by the respondents towards the issue. Further, to assess the damage caused to theby the use of the said defective tiles, a registered architect and interior designer, J.M. Vimawala was hired by thewho in his report declared the tiles to be defective and assessed the damage to theto the tune of Rs.4,27,712.37. Thereafter, themade a demand of the said amount as damages from the respondents vide legal notice dated 12.08.2002. But the respondents did not pay any heed to the said notice as well. Because of such irresponsible and indifferent attitude on the part of the respondents, thewas compelled to file Consumer Complaint No. 743 of 2002 before the District Forum.22. The District Forum, after appreciating the pleadings and evidence on record has rightly awarded Rs. 2 lakhs as damages to thetowards defective tiles supplied by the respondents along with compensation towards mental harassment and cost of present proceedings with interest @9% p.a. from the date of complaint till its recovery. In concurring with the findings of the District Forum, the State Commission, after properof the facts and evidence on record has rightly exercised its jurisdiction by dismissing the appeal of the respondents. The National Commission should not have interfered with the concurrent findings of fact recorded in the judgment impugned before it particularly having regard to the nature of the jurisdiction conferred upon it by Section 21 of the Consumer Protection Act, 1986.The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons. The National Commission has reversed the order passed by the State Commission by wrongly applying the decision of M/s Kusumam Hotels Pvt. Ltd. case (supra) to the set of facts in the present case. In the said case, the complainant was a hotel, it was considered to be a commercial entity and therefore, it was kept out of the purview of the definition ofunder Section 2(d) of the Consumer Protection Act, 1986. However, the National Commission has failed to appreciate the fact that in the present case, theis not a commercial establishment rather a registered society helping the adivasi students in their education by providing hostel facilities. The charges, if any, for accommodation in the hostel are for maintaining the hostel and not for making profit. Thus, theis consumer within the meaning of the termunder Section 2(d) of the Consumer Protection Act, 1986. The National Commission has erroneously accepted the contention urged on behalf of the respondents in the revisional proceedings that supply of tiles to theby respondent no. 1 through its local agent is for commercial purpose. The said finding is based on the decision in M/s Kusumam Hotels Pvt. Ltd. case (supra), which case absolutely has no application to the fact situation.24. Therefore, the concurrent finding of fact recorded by the District and the State Commission has been erroneously interfered with by the National Commission by passing the impugned order, which is liable to be set aside. For the aforesaid reasons, the appeal of the
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Maharaj Singh Vs. State of Uttar Pradesh and Others | out of fidelity to the goal of the statute and the continuing duty to salvage public property for public use. Long argument is otiose to make out a legal grievance in such a stituation of peril and, after all, the star of processual actions pro bono publico has to be on the ascendant in a society where supineness must be substituted by activism if the dynamic rule of law is to fulfil iteslef. Locus standi has a larger ambit in current legal semantics than the accepted, individualistic jurisproducen of old. The legal dogmas of the quiet past are no. longer adequate to assail the social injustices of the stormy present. Therefore, the State, in the present case, is entitled to appeal under Section 96 of the Code of Civil Procedure. Area appurtenant : 22. The second, and from a practical point of view, equally potent ground of defence, is that appurtenant space envelops the whole area around the buildings and the suit for recovery of possession deserveses to be dismissed in toto. Let us examine thsi submision. 23. Section 9 of the Act obligates the State to settle (9indeed, it is deemed to be settled) with the intermediary certain items in the estate. That provisions has been set out earlier. The short enquiry is whether the entire land is appurtenant to the buildings. The contention of the defendant flows along these liens. The structures accepted by teh High Court as buildings within the scope of Section 9 were part of a cattle fair complex. Even the Mandir and the Oushadalaya fitted into the Hat total and the integrity of the whole could not be broken up without violating the long years of common enjoyment. It would also be a double injury : (a) to the defendant; and (b) to the community. The hat or mela could not be held by the defendant if the land were snatched away and the Government could do nothing on the land without the buildings belonging to the defendant. May be there is some sociological substance in the preesentation but the broader purpose of the section cannot be sacrificed to the marginal cases like the present. The larger objectivfe, is to settle with the former intermediary only such land as is strictly appurtenant to buildings, all the rest going to the State for implementation of the agrarian reform policy. 24. The key to the solution of the dispute lies in ascertaining whether land on which the cattle fair was being held was appurtenant to the buildings or not on the strength of its use for the Hat. The Solicitor General made a two-pronged attach on the defendants proposition. firstly, he argued that hats, bazars and meals were a distinct interest in the scheme of Indian agrestic life and agrarian law. This right had been virtually nationlised by the Actand only the State or the Gaon Sabha, save where Section 18 (a) to (c) otherwise provided, could hold a fair. A ruling by this Court on an analogous subject lends support to this contention (see State of Bihar v. Dulhin Shanti Devi, AIR 1967 SC 427 relating to Bihar Land Reforms Act). 25. The heated debate at the bar on this and allied aspects need not detain us further also because of our concurrence with the second contention of the Solicitor General that the large open spaces cannot be regarded as appurtenant to the terraces, stands and structures. What is integral is not necessarily appurtenant. A position of subordination, something incidental or ancillary or dependent is implied in appurtenance. Can we say that the large spaces are subsidiary or ancillary to or inevitably inplied in the enjoyment of the buildings qua buildings? That much of space required for the use of the structures as such has been excluded by the High Court itself. Beyond that may or may not be necessary for the hat or mela but not for the enjoyment of the chabutras as such. A hundred acres may spread out in front of a club house for various games like golf. But all these abundant acres are unnecessary for nor indidental to the enjoyment of the house in any reasonable manner. It is confusion to miss the distinction, fine but real. 26. Appurtenance in relation to a dwelling or to a school, college ....... includes all land occupied therewith and used for the purposes thereof (Words and Phrases Legally Defined - Butterwords, 2nd Edn. ). The word appurtenances has a distinct and definite meaning ..... Prima facie it imports nothing more than what is strictly appertaining to the subject-matter of the devise or grant, and which would, in truth, pass without being specially mentioned! Ordinarily, what is necessary for the enjoyment and has been used for the purpose of the building, such as easements, alone will be appurtenant. Therefore, what is necessary for the enjoyment of the building is alone covered by the expression appurtenance. If some other purpose was being fulfilled by the building and the lands, it is not posible to content that those lands are covered by the expression appurtenances includes all the incorporeal hereditaments attached to the land granted or demised, such as rights of way, of common.... but it does not include lands in addition to that granted. (Words and Phrases, supra) 27. In short, the touchstone of appurtenance is dependence of the building on what appertains to it for its use as a building. Obviously, the hat, bazar or mela is not an appurtenance to the building. The law thus leads to the clear conclusion that even if the buildings were used and enjoyed in the past with the whole stretch of vacant space for a hat or mela, the land is not appurtenant to the pricnipal subject granted by section 9, viz. buildings. 28. This conclusion is inevitable, although the contrary arguments may be ingenious. What the High Court has granted, viz., 5 yards of surrounding space, is sound in law although based on guess-work in fact. | 0[ds]Reading the two sister sections together, certain clear conclusions emerge. Emphatically, three things happened on the coming into force of the Act. By virtue of Section 4 the right, title and interest of all intermediaries in every estate, including hasts, bazars and melas, stood terminated. Secondly, this whole bundle of interests came to be vested in the State, free from all encumbrances, the quality of the vesting being absolute. Thirdly, one and only one species of property in hats, bazars and melas was expressly excluded from the total vesting of estates in the State, viz., such as had been held on lands to which Section 18 (1) (a) to (c) applied.9. Pausing here for an interest, let us look back on the State which, through its Executive branch, vests a resumed estates in a Gaon Sabha, retaining power, at any time, and without conditions or even compensation (save for actual development work done), to divest the land so vested and make it over to another like local authority. In such a situation where the State remains the legal master with absolute powers of disposition over the land vested pro tempore in a particular Gaon Sabha, can it be postulated that it has no. legal interest in the preservation of that over which it has continuous power of operation, despite vesting estates in Gaon Sabhas on the wholesome political principle off decentralisation and local self-government, has and continues to have a constant hold on these estates, may be like a brooding omnipotence, descending, when it chooses, to take away what it had given possession of to a Sabha. This is plainly present legal interest in Government and a sort of precarium tenans in the Sabha, notwithstanding the illusory expression vesting which may mislead one into the impression that an absolute and permanent ownership has been created.11. Shri Shanti Bhusan did draw our attention to certain cousin status and other remotely related provisionsbut the soul of his submissions does not suffer by their omission in the discussion.12. The estates first vest in the State. The fulfilment of the purpose of the Act, the setting in which the cornerstone for the statutory edifice is laid and the categorical langtuage used, especially free from all encumbrances, leave no. doubt in our minds, nor was it dispute before us, that this intiial vesting is absolute and inaugurates the scheme of abolition. The consequences of vesting articulated by Section 6 only underscore this conclusion.Had drafting skills been better, this unlovely ambiguity could have been avoided. But courts have no. choice but to take the test as it is. Zeroing in on the relevant provisions, we are inclined to concur with the High Court.With certificate one may asert that the State has that minimal interest to follow the proprietary fortunes of the estate so as to entitle it to take legal action to interdict its getting into alien hands.In the instant case the Act contemplates taking over of all zamindari rights as part of land reforms. however, instead of centralising management of all estates at State level, to stimulate local self-government, the Act gives an enabling power - not obligatory duty - to make over these estates to Gaon Sabhas which, so long as they are in their hands, will look after them through management committees which wil be under the statutory control of Government under Section 126. Apart from management, no. power is expressly vested in the Sabhas to dispose of the estates absolutely.; The fact that as a body corporate it can own and sell property does not mean that the estates vested in a sabha can be finally sold away, in the teeth of the provisions striking a contrary note. For, under Section 117 (6), if, for any reasons of better management or other, the State (Government is but the operational arm of the State and cannot, as contended, be delinked as a separate entity, in this context) - the State thinks fit to amend or cancel the earrlier vesting declaration or notification, it can totally deprive the Sabha of, and resume from it, any estate. This plenary power to emasculate or extinguish the Sabhas right to the estate is tell-tale. True, this cut-back on the amplitude of the vesting is not an incident of the estate created but is provided for by the Act itself. Even so, we have to envision, int erms of realty law, what are the natujre and incidents of the intests vested in the Sabha - fall ownership divestible under no. circumstances or partial estate with the paramount interest still surviving in praesenti in the State?15. It is reasonable to harmonize the statutory provisions to reach a solution which will be least incognruous with legal rights we are cognisant of in current jurisprudence. Novelty is not a favoured child of the law. So it is right to fix the estate created by Section 117 into familiar moulds, if any. Such an approach lends to the position that the vesting in the State was absolute but the vesting in the Sabha was limited to possession and management subject to divestiture by Government. Is such a construction of vesting in two diferent senses in the same section, sound? yes. It is, because vesting is a word of slippery import and has many meanings. The context controls the test and the purpose and scheme project the particular semantic shade or nuance of meaning. That is why even definition clauses allow themselves to be modifified by contextual compulsions. So the sense of the situation suggests that in Section 117 (1) of the Act vested in the State carries a pleanary connotaion, while shall vest in the Gaon Sabha imports a qualified disposition confined to the right to full possession and enjoyment so long as it lasts. Lexicographic support is forthcoming, for this meaning.17. There is thus authority for the position that the expression vest is of fluid or flexible content and can, if the context so dictates, bear the limited sense of being in posession and enjoyment. Indeed, to postulate vesting of absolute title int he Gaon Sabha by virtue of the declaration under Section 117 (1) of the Act is to stultify Section 117 (1) of the Act is to stultify section 117 (6). Not that the legislature cannot create a right to divest what has been completely vested but that an explanation of the term vesting which will rationalise and integrate the initial vesting and the subsequent resumptin is preferable, more plausible and better fulfills the purpose of the Act. We hold that the State has title to sustain the action in ejectment.18. Aside from this stand, it is easy to take the view that the 1st plaintiff, is a person aggreived and has the competent to carry an appeal agaisnt the dismissal of the suit. Of course, he who has a proprietary right, which has been or is threatned to be violated, is surely and aggreived person. A legal injury creates a remedial right in the injured person. But the right to a remedy apart, a larger circle of persons can move the Court for the protection or defence or enforcement of a civil right or to ward off or claim compensation for a civil wrong, even if they are not proprietarily or personally linked with the cause of action. The nexus between the lies and the plaintiff need not necessarily be personal, although it has to be more than a wayfarers allergy to an unpalatable episode. A person aggreived is an expression which has expanded with the larger urgenceis and felt necessiuties of our times.Dabholkar (1976) 1 SCR 306 = (AIR 1975 SC 2092 ) gives the updated answer :The test is whether the words person aggrieved include a person who has a genuine grievance because an order has been made which prejudicallly affects his interest(p. 315 of SCR) = (at p. 2098 of AIR)American jurisproducen has recognised, for instance, the expanding importance of consumer protection in the economic system and permitted consumer organisations to initiate or intervene in actions, although by the narrow rule of locus standi, such a course could not have been justified (see p. 807 - New York University Law Reveiw, Vol. 46, 1971). In fact, citizen organisation have recently been campaigning for using legal actions for protection of community interest, braodiening the scope of standing in legal proceedings (see p. 403 - Bosten Unviersity Law Reveiw, Vol. 51, 1971)In the well-known case of Attorney General of the Gambia v. Peirra Serr NJie, (161), Lord Denning observed about the Attorney-Generals standing thus :........ The word person aggrieved are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his itnerest. (pp. 324-325 of SCR) = (at p. 2105 of AIR).. Where a wrong against community itnerest is done, no locus standi will not always be a plea to non-suit an interested public body chasing th ewrongdoes in court. In the case before us, Government, in the spacious sense of person aggreived ius comfortably placed. Its right of resumption from the Gaon Sabha, meant to be exercised in public interest, will be seriously jeopardised if the estate slips into the hands of a trespasser. The estate belonged to the State, is vested in the Gaon Sabha for community benefit, is controlled by the State through directions to the Land Management Committee and is liable to be divested without ado any time. The wholesome object of th elegislature of cautiously decentralised vesting of estates in local self-governning units will be frustrated, if the State, the watch-dog of the whole project, is to be a helpless spectator of its purposeful bountry being wasted or lost. It must act, out of fidelity to the goal of the statute and the continuing duty to salvage public property for public use. Long argument is otiose to make out a legal grievance in such a stituation of peril and, after all, the star of processual actions pro bono publico has to be on the ascendant in a society where supineness must be substituted by activism if the dynamic rule of law is to fulfil iteslef. Locus standi has a larger ambit in current legal semantics than the accepted, individualistic jurisproducen of old. The legal dogmas of the quiet past are no. longer adequate to assail the social injustices of the stormy present. Therefore, the State, in the present case, is entitled to appeal under Section 96 of theCode of Civil Procedure.23. Section 9 of the Act obligates the State to settle (9indeed, it is deemed to be settled) with the intermediary certain items in the estate. That provisions has been set out earlier.The short enquiry is whether the entire land is appurtenant to the buildings.The contention of the defendant flows along these liens. The structures accepted by teh High Court as buildings within the scope of Section 9 were part of a cattle fair complex. Even the Mandir and the Oushadalaya fitted into the Hat total and the integrity of the whole could not be broken up without violating the long years of common enjoyment. It would also be a double injury : (a) to the defendant; and (b) to the community. The hat or mela could not be held by the defendant if the land were snatched away and the Government could do nothing on the land without the buildings belonging to the defendant. May be there is some sociological substance in the preesentation but the broader purpose of the section cannot be sacrificed to the marginal cases like the present. The larger objectivfe, is to settle with the former intermediary only such land as is strictly appurtenant to buildings, all the rest going to the State for implementation of the agrarian reform policy.24. The key to the solution of the dispute lies in ascertaining whether land on which the cattle fair was being held was appurtenant to the buildings or not on the strength of its use for the Hat. The Solicitor General made a two-pronged attach on the defendants proposition. firstly, he argued that hats, bazars and meals were a distinct interest in the scheme of Indian agrestic life and agrarian law. This right had been virtually nationlised by the Actand only the State or the Gaon Sabha, save where Section 18 (a) to (c) otherwise provided, could hold a fair. A ruling by this Court on an analogous subject lends support to this contention (see State of Bihar v. Dulhin Shanti Devi, AIR 1967 SC 427 relating to Bihar Land Reforms Act)25. The heated debate at the bar on this and allied aspects need not detain us further also because of our concurrence with the second contention of the Solicitor General that the large open spaces cannot be regarded as appurtenant to the terraces, stands and structures. What is integral is not necessarily appurtenant. A position of subordination, something incidental or ancillary or dependent is implied in appurtenance. Can we say that the large spaces are subsidiary or ancillary to or inevitably inplied in the enjoyment of the buildings qua buildings? That much of space required for the use of the structures as such has been excluded by the High Court itself. Beyond that may or may not be necessary for the hat or mela but not for the enjoyment of the chabutras as such. A hundred acres may spread out in front of a club house for various games like golf. But all these abundant acres are unnecessary for nor indidental to the enjoyment of the house in any reasonable manner. It is confusion to miss the distinction, fine but real.27. In short, the touchstone of appurtenance is dependence of the building on what appertains to it for its use as a building. Obviously, the hat, bazar or mela is not an appurtenance to the building. The law thus leads to the clear conclusion that even if the buildings were used and enjoyed in the past with the whole stretch of vacant space for a hat or mela, the land is not appurtenant to the pricnipal subject granted by section 9, viz. buildings.28. This conclusion is inevitable, although the contrary arguments may be ingenious. What the High Court has granted, viz., 5 yards of surrounding space, is sound in law although based on guess-work in fact.26. Appurtenance in relation to a dwelling or to a school, college ....... includes all land occupied therewith and used for the purposes thereof (Words and Phrases Legally Defined - Butterwords, 2nd Edn. ). The word appurtenances has a distinct and definite meaning ..... Prima facie it imports nothing more than what is strictly appertaining to the subject-matter of the devise or grant, and which would, in truth, pass without being specially mentioned! Ordinarily, what is necessary for the enjoyment and has been used for the purpose of the building, such as easements, alone will be appurtenant. Therefore, what is necessary for the enjoyment of the building is alone covered by the expression appurtenance. If some other purpose was being fulfilled by the building and the lands, it is not posible to content that those lands are covered by the expression appurtenances includes all the incorporeal hereditaments attached to the land granted or demised, such as rights of way, of common.... but it does not include lands in addition to that granted. (Words and Phrases, supra)26. Appurtenance in relation to a dwelling or to a school, college ....... includes all land occupied therewith and used for the purposes thereof (Words and Phrases Legally Defined - Butterwords, 2nd Edn. ). The word appurtenances has a distinct and definite meaning ..... Prima facie it imports nothing more than what is strictly appertaining to the subject-matter of the devise or grant, and which would, in truth, pass without being specially mentioned! Ordinarily, what is necessary for the enjoyment and has been used for the purpose of the building, such as easements, alone will be appurtenant. Therefore, what is necessary for the enjoyment of the building is alone covered by the expression appurtenance. If some other purpose was being fulfilled by the building and the lands, it is not posible to content that those lands are covered by the expression appurtenances includes all the incorporeal hereditaments attached to the land granted or demised, such as rights of way, of common.... but it does not include lands in addition to that granted. (Words and Phrases, supra) | 0 | 6,624 | 3,102 | ### 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:
out of fidelity to the goal of the statute and the continuing duty to salvage public property for public use. Long argument is otiose to make out a legal grievance in such a stituation of peril and, after all, the star of processual actions pro bono publico has to be on the ascendant in a society where supineness must be substituted by activism if the dynamic rule of law is to fulfil iteslef. Locus standi has a larger ambit in current legal semantics than the accepted, individualistic jurisproducen of old. The legal dogmas of the quiet past are no. longer adequate to assail the social injustices of the stormy present. Therefore, the State, in the present case, is entitled to appeal under Section 96 of the Code of Civil Procedure. Area appurtenant : 22. The second, and from a practical point of view, equally potent ground of defence, is that appurtenant space envelops the whole area around the buildings and the suit for recovery of possession deserveses to be dismissed in toto. Let us examine thsi submision. 23. Section 9 of the Act obligates the State to settle (9indeed, it is deemed to be settled) with the intermediary certain items in the estate. That provisions has been set out earlier. The short enquiry is whether the entire land is appurtenant to the buildings. The contention of the defendant flows along these liens. The structures accepted by teh High Court as buildings within the scope of Section 9 were part of a cattle fair complex. Even the Mandir and the Oushadalaya fitted into the Hat total and the integrity of the whole could not be broken up without violating the long years of common enjoyment. It would also be a double injury : (a) to the defendant; and (b) to the community. The hat or mela could not be held by the defendant if the land were snatched away and the Government could do nothing on the land without the buildings belonging to the defendant. May be there is some sociological substance in the preesentation but the broader purpose of the section cannot be sacrificed to the marginal cases like the present. The larger objectivfe, is to settle with the former intermediary only such land as is strictly appurtenant to buildings, all the rest going to the State for implementation of the agrarian reform policy. 24. The key to the solution of the dispute lies in ascertaining whether land on which the cattle fair was being held was appurtenant to the buildings or not on the strength of its use for the Hat. The Solicitor General made a two-pronged attach on the defendants proposition. firstly, he argued that hats, bazars and meals were a distinct interest in the scheme of Indian agrestic life and agrarian law. This right had been virtually nationlised by the Actand only the State or the Gaon Sabha, save where Section 18 (a) to (c) otherwise provided, could hold a fair. A ruling by this Court on an analogous subject lends support to this contention (see State of Bihar v. Dulhin Shanti Devi, AIR 1967 SC 427 relating to Bihar Land Reforms Act). 25. The heated debate at the bar on this and allied aspects need not detain us further also because of our concurrence with the second contention of the Solicitor General that the large open spaces cannot be regarded as appurtenant to the terraces, stands and structures. What is integral is not necessarily appurtenant. A position of subordination, something incidental or ancillary or dependent is implied in appurtenance. Can we say that the large spaces are subsidiary or ancillary to or inevitably inplied in the enjoyment of the buildings qua buildings? That much of space required for the use of the structures as such has been excluded by the High Court itself. Beyond that may or may not be necessary for the hat or mela but not for the enjoyment of the chabutras as such. A hundred acres may spread out in front of a club house for various games like golf. But all these abundant acres are unnecessary for nor indidental to the enjoyment of the house in any reasonable manner. It is confusion to miss the distinction, fine but real. 26. Appurtenance in relation to a dwelling or to a school, college ....... includes all land occupied therewith and used for the purposes thereof (Words and Phrases Legally Defined - Butterwords, 2nd Edn. ). The word appurtenances has a distinct and definite meaning ..... Prima facie it imports nothing more than what is strictly appertaining to the subject-matter of the devise or grant, and which would, in truth, pass without being specially mentioned! Ordinarily, what is necessary for the enjoyment and has been used for the purpose of the building, such as easements, alone will be appurtenant. Therefore, what is necessary for the enjoyment of the building is alone covered by the expression appurtenance. If some other purpose was being fulfilled by the building and the lands, it is not posible to content that those lands are covered by the expression appurtenances includes all the incorporeal hereditaments attached to the land granted or demised, such as rights of way, of common.... but it does not include lands in addition to that granted. (Words and Phrases, supra) 27. In short, the touchstone of appurtenance is dependence of the building on what appertains to it for its use as a building. Obviously, the hat, bazar or mela is not an appurtenance to the building. The law thus leads to the clear conclusion that even if the buildings were used and enjoyed in the past with the whole stretch of vacant space for a hat or mela, the land is not appurtenant to the pricnipal subject granted by section 9, viz. buildings. 28. This conclusion is inevitable, although the contrary arguments may be ingenious. What the High Court has granted, viz., 5 yards of surrounding space, is sound in law although based on guess-work in fact.
### Response:
0
### Explanation:
under Section 96 of theCode of Civil Procedure.23. Section 9 of the Act obligates the State to settle (9indeed, it is deemed to be settled) with the intermediary certain items in the estate. That provisions has been set out earlier.The short enquiry is whether the entire land is appurtenant to the buildings.The contention of the defendant flows along these liens. The structures accepted by teh High Court as buildings within the scope of Section 9 were part of a cattle fair complex. Even the Mandir and the Oushadalaya fitted into the Hat total and the integrity of the whole could not be broken up without violating the long years of common enjoyment. It would also be a double injury : (a) to the defendant; and (b) to the community. The hat or mela could not be held by the defendant if the land were snatched away and the Government could do nothing on the land without the buildings belonging to the defendant. May be there is some sociological substance in the preesentation but the broader purpose of the section cannot be sacrificed to the marginal cases like the present. The larger objectivfe, is to settle with the former intermediary only such land as is strictly appurtenant to buildings, all the rest going to the State for implementation of the agrarian reform policy.24. The key to the solution of the dispute lies in ascertaining whether land on which the cattle fair was being held was appurtenant to the buildings or not on the strength of its use for the Hat. The Solicitor General made a two-pronged attach on the defendants proposition. firstly, he argued that hats, bazars and meals were a distinct interest in the scheme of Indian agrestic life and agrarian law. This right had been virtually nationlised by the Actand only the State or the Gaon Sabha, save where Section 18 (a) to (c) otherwise provided, could hold a fair. A ruling by this Court on an analogous subject lends support to this contention (see State of Bihar v. Dulhin Shanti Devi, AIR 1967 SC 427 relating to Bihar Land Reforms Act)25. The heated debate at the bar on this and allied aspects need not detain us further also because of our concurrence with the second contention of the Solicitor General that the large open spaces cannot be regarded as appurtenant to the terraces, stands and structures. What is integral is not necessarily appurtenant. A position of subordination, something incidental or ancillary or dependent is implied in appurtenance. Can we say that the large spaces are subsidiary or ancillary to or inevitably inplied in the enjoyment of the buildings qua buildings? That much of space required for the use of the structures as such has been excluded by the High Court itself. Beyond that may or may not be necessary for the hat or mela but not for the enjoyment of the chabutras as such. A hundred acres may spread out in front of a club house for various games like golf. But all these abundant acres are unnecessary for nor indidental to the enjoyment of the house in any reasonable manner. It is confusion to miss the distinction, fine but real.27. In short, the touchstone of appurtenance is dependence of the building on what appertains to it for its use as a building. Obviously, the hat, bazar or mela is not an appurtenance to the building. The law thus leads to the clear conclusion that even if the buildings were used and enjoyed in the past with the whole stretch of vacant space for a hat or mela, the land is not appurtenant to the pricnipal subject granted by section 9, viz. buildings.28. This conclusion is inevitable, although the contrary arguments may be ingenious. What the High Court has granted, viz., 5 yards of surrounding space, is sound in law although based on guess-work in fact.26. Appurtenance in relation to a dwelling or to a school, college ....... includes all land occupied therewith and used for the purposes thereof (Words and Phrases Legally Defined - Butterwords, 2nd Edn. ). The word appurtenances has a distinct and definite meaning ..... Prima facie it imports nothing more than what is strictly appertaining to the subject-matter of the devise or grant, and which would, in truth, pass without being specially mentioned! Ordinarily, what is necessary for the enjoyment and has been used for the purpose of the building, such as easements, alone will be appurtenant. Therefore, what is necessary for the enjoyment of the building is alone covered by the expression appurtenance. If some other purpose was being fulfilled by the building and the lands, it is not posible to content that those lands are covered by the expression appurtenances includes all the incorporeal hereditaments attached to the land granted or demised, such as rights of way, of common.... but it does not include lands in addition to that granted. (Words and Phrases, supra)26. Appurtenance in relation to a dwelling or to a school, college ....... includes all land occupied therewith and used for the purposes thereof (Words and Phrases Legally Defined - Butterwords, 2nd Edn. ). The word appurtenances has a distinct and definite meaning ..... Prima facie it imports nothing more than what is strictly appertaining to the subject-matter of the devise or grant, and which would, in truth, pass without being specially mentioned! Ordinarily, what is necessary for the enjoyment and has been used for the purpose of the building, such as easements, alone will be appurtenant. Therefore, what is necessary for the enjoyment of the building is alone covered by the expression appurtenance. If some other purpose was being fulfilled by the building and the lands, it is not posible to content that those lands are covered by the expression appurtenances includes all the incorporeal hereditaments attached to the land granted or demised, such as rights of way, of common.... but it does not include lands in addition to that granted. (Words and Phrases, supra)
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THE STATE OF JHARKHAND Vs. GOPAL PRASAD MANDAL | of the writ petition and the land on which the road was to be constructed has specifically been indicated. Hence, the Counsel for the Respondents shall explain it to the respondents– authorities regarding the identification of the land on which the road was to be constructed. Thus, the objection raised has no substance and hence it is rejected. Let this matter be listed again on 24 th September, 2008.?2. This Court by order dated 17.11.2008 had issued notice on the Special Leave Petition filed by the State of Jharkhand with a direction to file a counter affidavit and the contempt proceedings before the High Court were stayed until further orders. The matter has remained pending since then. 3. Contempt proceedings arise from Public Interest Writ Petition (C) No. 6956 of 2006 that were filed before the High Court of Jharkhand with the following prayers:(i) Issuance of appropriate order(s) and/or direction(s) upon the respondents to show cause as to why and under what compelling circumstances, the respondents have till date not constructed the approach road connecting village ?Koradih? under Circle Sarwan, P.O. Sabejor, P.S. Sarwan, Sub- Division and district Deoghar to the ?Deoghar – Madhupur? Main Road which would facilitate and benefit more than 10,000/- villagers of neighbouring more than 15 villages in transportation and movement to the nearest market, main town and district headquarters as well as enable them to avail better medical facility in Sadar Hospital at Deoghar Town and other well equipped private hospitals and for which the respondents have already acquired 13 decimal of land under due process of law vide L.A. Case No. 11/2003 – 04 as far back as in 2004 when construction of said approach road was duly sanctioned. (ii) For issuance of appropriate order(s) and/or direction(s) upon the respondents to construct and build the said approach road connecting village Koradih to the Deoghar – Madhupur Main Road in right earnest on the stretch of land measuring 13 decimals of plot No.3, J.B. No. 5, Thana No.243 village Koradih under Sarath Block, district Deoghar acquired vide L.A. Case No. 11/2003-04 and duly sanctioned in the year 2004. (iii) for any other relief(s) as the petitioner may be found entitled in law.?Grievance raised in the Writ Petition was concerning delay in construction of the approach road connecting village Koradih located in Deoghar District with the Deoghar-Madhupur main road, inconveniencing more than 10,000 villagers belonging to over 15 neighbouring villages. It was alleged that private land admeasuring 13 decimals had been acquired in 2004 for constructing the connecting road. 4. The High Court vide order dated 17.04.2007 in this PIL had directed the Deputy Commissioner, Deoghar to file an undertaking giving a time frame for completing the construction of the road. Accordingly, supplementary affidavit dated 09.05.2007 was filed by the Additional Collector, Deoghar on behalf of the Deputy Commissioner, Deoghar wherein he had given an assurance and commitment that the road shall be completed within five or six months after removing encroachment, etc. Thereupon, the writ petition was disposed of vide order dated 09.05.2007 of the High Court directing that the construction of the road in question will be completed within five or six months. 5. The respondent had thereafter initiated contempt proceedings contending that the appellant authorities had not complied with the High Court order dated 09.05.2007 as they had constructed the connecting road on an alternate land, and not on the private land of 13 decimals acquired for this purpose. 6. In response, the appellant authorities had filed an affidavit stating that in light of the aforesaid High Court order, the matter had been considered and an enquiry was made by the Sub-Divisional Officer, Madhupur at the instance of the then Deputy Commissioner, Deoghar as there was resistance and agitation by some villagers against acquisition of 13 decimals of land. Land owners had refused to accept payment. Accordingly, a proposal had been sent by the Deputy Commissioner to the appropriate authority of the Revenue Department for withdrawal of the emergent acquisition proceedings. To resolve the multiple opposing concerns, the Additional Collector along with the Deputy Commissioner, Deoghar and Circle Officer of Sarwan Block and Circle Officer of Sarath Block had persuaded the villagers that an existing rural path would be converted into a motorable road. Accordingly, within the time frame mentioned in the supplementary affidavit, encroachments made by the inhabitants of the villages were removed, and an alternative approach road admeasuring 700 feet approximately in length was constructed connecting the village Koradih with the Deogarh-Madhupur main road. The road, if constructed on 13 decimals of land would have been about 300 feet in length. The difference in length being about 400 feet would clearly show that the change was marginal and was not inconvenient. In any case, it was acceptable to the villagers. 7. In view of the explanation given by the authorities and also the fact that the road had been constructed, we do not see any good ground and reason for the High Court to have passed the impugned order and directions. The object behind the PIL was to ensure that the connected road is constructed, which has been constructed timely though at a location different to the original in view of the settlement amongst the villagers. We do not think the order dated 09.05.2007 passed in the PIL should be read strictly in a pedantic manner to be construed as a direction that the road had to be constructed at one particular location. Road was to be constructed for the benefit of the villagers for which the authorities had taken steps in view of the grievances of the villagers and an amicable solution after discussion was found and accepted. 8. Though one would agree that in case of doubt, the authorities should have approached the court for clarification and appropriate directions, albeit this failure would not justify contempt of the court proceedings. In fact, there is compliance of the court?s directions without the matter getting escalated and the controversy was resolved. | 1[ds]The difference in length being about 400 feet would clearly show that the change was marginal and was not inconvenient. In any case, it was acceptable to the villagers.In view of the explanation given by the authorities and also the fact that the road had been constructed, we do not see any good ground and reason for the High Court to have passed the impugned order and directions. The object behind the PIL was to ensure that the connected road is constructed, which has been constructed timely though at a location different to the original in view of the settlement amongst the villagers. We do not think the order dated 09.05.2007 passed in the PIL should be read strictly in a pedantic manner to be construed as a direction that the road had to be constructed at one particular location. Road was to be constructed for the benefit of the villagers for which the authorities had taken steps in view of the grievances of the villagers and an amicable solution after discussion was found and accepted.Though one would agree that in case of doubt, the authorities should have approached the court for clarification and appropriate directions, albeit this failure would not justify contempt of the court proceedings. In fact, there is compliance of the court?s directions without the matter getting escalated and the controversy was resolved. | 1 | 1,314 | 244 | ### 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:
of the writ petition and the land on which the road was to be constructed has specifically been indicated. Hence, the Counsel for the Respondents shall explain it to the respondents– authorities regarding the identification of the land on which the road was to be constructed. Thus, the objection raised has no substance and hence it is rejected. Let this matter be listed again on 24 th September, 2008.?2. This Court by order dated 17.11.2008 had issued notice on the Special Leave Petition filed by the State of Jharkhand with a direction to file a counter affidavit and the contempt proceedings before the High Court were stayed until further orders. The matter has remained pending since then. 3. Contempt proceedings arise from Public Interest Writ Petition (C) No. 6956 of 2006 that were filed before the High Court of Jharkhand with the following prayers:(i) Issuance of appropriate order(s) and/or direction(s) upon the respondents to show cause as to why and under what compelling circumstances, the respondents have till date not constructed the approach road connecting village ?Koradih? under Circle Sarwan, P.O. Sabejor, P.S. Sarwan, Sub- Division and district Deoghar to the ?Deoghar – Madhupur? Main Road which would facilitate and benefit more than 10,000/- villagers of neighbouring more than 15 villages in transportation and movement to the nearest market, main town and district headquarters as well as enable them to avail better medical facility in Sadar Hospital at Deoghar Town and other well equipped private hospitals and for which the respondents have already acquired 13 decimal of land under due process of law vide L.A. Case No. 11/2003 – 04 as far back as in 2004 when construction of said approach road was duly sanctioned. (ii) For issuance of appropriate order(s) and/or direction(s) upon the respondents to construct and build the said approach road connecting village Koradih to the Deoghar – Madhupur Main Road in right earnest on the stretch of land measuring 13 decimals of plot No.3, J.B. No. 5, Thana No.243 village Koradih under Sarath Block, district Deoghar acquired vide L.A. Case No. 11/2003-04 and duly sanctioned in the year 2004. (iii) for any other relief(s) as the petitioner may be found entitled in law.?Grievance raised in the Writ Petition was concerning delay in construction of the approach road connecting village Koradih located in Deoghar District with the Deoghar-Madhupur main road, inconveniencing more than 10,000 villagers belonging to over 15 neighbouring villages. It was alleged that private land admeasuring 13 decimals had been acquired in 2004 for constructing the connecting road. 4. The High Court vide order dated 17.04.2007 in this PIL had directed the Deputy Commissioner, Deoghar to file an undertaking giving a time frame for completing the construction of the road. Accordingly, supplementary affidavit dated 09.05.2007 was filed by the Additional Collector, Deoghar on behalf of the Deputy Commissioner, Deoghar wherein he had given an assurance and commitment that the road shall be completed within five or six months after removing encroachment, etc. Thereupon, the writ petition was disposed of vide order dated 09.05.2007 of the High Court directing that the construction of the road in question will be completed within five or six months. 5. The respondent had thereafter initiated contempt proceedings contending that the appellant authorities had not complied with the High Court order dated 09.05.2007 as they had constructed the connecting road on an alternate land, and not on the private land of 13 decimals acquired for this purpose. 6. In response, the appellant authorities had filed an affidavit stating that in light of the aforesaid High Court order, the matter had been considered and an enquiry was made by the Sub-Divisional Officer, Madhupur at the instance of the then Deputy Commissioner, Deoghar as there was resistance and agitation by some villagers against acquisition of 13 decimals of land. Land owners had refused to accept payment. Accordingly, a proposal had been sent by the Deputy Commissioner to the appropriate authority of the Revenue Department for withdrawal of the emergent acquisition proceedings. To resolve the multiple opposing concerns, the Additional Collector along with the Deputy Commissioner, Deoghar and Circle Officer of Sarwan Block and Circle Officer of Sarath Block had persuaded the villagers that an existing rural path would be converted into a motorable road. Accordingly, within the time frame mentioned in the supplementary affidavit, encroachments made by the inhabitants of the villages were removed, and an alternative approach road admeasuring 700 feet approximately in length was constructed connecting the village Koradih with the Deogarh-Madhupur main road. The road, if constructed on 13 decimals of land would have been about 300 feet in length. The difference in length being about 400 feet would clearly show that the change was marginal and was not inconvenient. In any case, it was acceptable to the villagers. 7. In view of the explanation given by the authorities and also the fact that the road had been constructed, we do not see any good ground and reason for the High Court to have passed the impugned order and directions. The object behind the PIL was to ensure that the connected road is constructed, which has been constructed timely though at a location different to the original in view of the settlement amongst the villagers. We do not think the order dated 09.05.2007 passed in the PIL should be read strictly in a pedantic manner to be construed as a direction that the road had to be constructed at one particular location. Road was to be constructed for the benefit of the villagers for which the authorities had taken steps in view of the grievances of the villagers and an amicable solution after discussion was found and accepted. 8. Though one would agree that in case of doubt, the authorities should have approached the court for clarification and appropriate directions, albeit this failure would not justify contempt of the court proceedings. In fact, there is compliance of the court?s directions without the matter getting escalated and the controversy was resolved.
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The difference in length being about 400 feet would clearly show that the change was marginal and was not inconvenient. In any case, it was acceptable to the villagers.In view of the explanation given by the authorities and also the fact that the road had been constructed, we do not see any good ground and reason for the High Court to have passed the impugned order and directions. The object behind the PIL was to ensure that the connected road is constructed, which has been constructed timely though at a location different to the original in view of the settlement amongst the villagers. We do not think the order dated 09.05.2007 passed in the PIL should be read strictly in a pedantic manner to be construed as a direction that the road had to be constructed at one particular location. Road was to be constructed for the benefit of the villagers for which the authorities had taken steps in view of the grievances of the villagers and an amicable solution after discussion was found and accepted.Though one would agree that in case of doubt, the authorities should have approached the court for clarification and appropriate directions, albeit this failure would not justify contempt of the court proceedings. In fact, there is compliance of the court?s directions without the matter getting escalated and the controversy was resolved.
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Smt. Rita Devi Vs. New India Assurance Co.Ltd.&Anr | entirely different. She also contends on the facts of this case no proximity could be presumed between the murder of the driver and the stealing of the auto rickshaw. We are unable to accept this contention advanced on behalf of the respondents. We do not see how the object of the two Acts, namely, the Motor Vehicles Act and the Workmens Compensation Act are in any way different. In our opinion, the relevant object of both the Acts are to provide compensation to the victims of accidents. The only difference between the two enactments is that so far as the Workmens Compensation Act is concerned, it is confined to workmen as defined under that Act while the relief provided under Chapters X to XII of the Motor Vehicles Act is available to all the victims of accidents involving a motor vehicle. In this conclusion of ours we are supported by Section 167 of the Motor Vehicles Act as per which provision, it is open to the claimants either to proceed to claim compensation under the Workmens Compensation Act or under the Motor Vehicles Act. A perusal of the objects of the two enactments clearly establishes that both the enactments are beneficial enactments operating in the same field, hence judicially accepted interpretation of the word `death in Workmens Compensation Act is, in our opinion applicable to the interpretation of the word death in the Motor Vehicles Act also. 14. In the case of Shivaji Dayanu Patil and Anr. v. Vatschala Uttam More, 1991(3) SCC 530 this Court while pronouncing on the interpretation of Section 92A of the Motor Vehicles Act, 1939 held as follows : "Section 92-A was in the nature of a beneficial legislation enacted with a view to confer the benefit of expeditious payment of a limited amount by way of compensation to the victims of an accident arising out of the use of a motor vehicle on the basis of no fault liability. In the matter of interpretation of a beneficial legislation the approach of the courts is to adopt a construction which advances the beneficent purpose underlying the enactment in preference to a construction which tends to defeat that purpose." 15. In that case in regard to the contention of proximity between the accident and the explosion that took place this Court held : "This would show that as compared to the expression "caused by", the expression "arising out of" has a wider connotation. The expression "caused by" was used in Section 95(1)(b)(i) and (ii) and 96(2)(b)(ii) of the Act. In Section 92-A, Parliament, however, chose to use the expression "arising out of" which indicates that for the purpose of awarding compensation under Section 92-A, the causal relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that accident should be connected with the use of the motor vehicle but the said connection need not be direct and immediate. This construction of the expression "arising out of the use of a motor vehicle" in Section 92-A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment." 16. In the instant case, as we have noticed the facts, we have no hesitation in coming to the conclusion that the murder of the deceased (Dasarath Singh) was due to an accident arising out of the use of motor vehicle. Therefore, the trial court rightly came to the conclusion that the claimants were entitled for compensation as claimed by them and the High Court was wrong in coming to the conclusion that the death of Dasarath Singh was not caused by an accident involving the use of motor vehicle.17. This leaves us to consider the second point raised before us by the counsel for the appellant. It is argued on behalf of the appellants that the appeal preferred by the Insurance Company purported to be under Section 173 of the Motor Vehicles Act was not maintainable because prior permission of the Court as required was not obtained by the appellants. In support of this contention of the appellants, reliance is placed on a judgments of this court in the case Shankarayya and Anr. v. United India Insurance Co. Ltd. and Anr., 1998(3) SCC 140. In the said judgment a Division Bench of this court held : "The Insurance Company when impleaded as a party by the Court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for that purpose the Insurance Company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless that procedure is followed, the Insurance Company cannot have a wider defence on merits than what is available to it by way of statutory defence. It is true that the claimants themselves had joined Respondent 1 insurance Company in the claim petition but that was done with a view to thrust the statutory liability on the Insurance Company on account of the contract of the insurance. That was not an order of the Court itself permitting the Insurance Company which was impleaded to avail of a larger defence on merits on being satisfied on the aforesaid two conditions mentioned in Section 170. Consequently, it must be held that on the facts of the present case, Respondent 1 Insurance Company was not entitled to file an appeal on merits of the claim which was awarded by the Tribunal." 18. We respectfully agree with the ration laid down in the above case and in view of the fact admittedly the Insurance Company had not obtained leave from the tribunal before filing the above appeal. We are of the opinion that the appeal filed by the Insurance Company before the High Court was not maintainable in law. | 1[ds]There is no doubt that `murder. as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a `murder which is not an accident and a `murder which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the act of felony is the kill any particular person then such killing is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder.Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the auto rickshaw, was duty bound to have accepted the demand of fare paying passengers to transport them to the place of their destination. During the course of this duty, if the passengers had decided to commit an act of felony of stealing the auto rickshaw and in the course of achieving the said object of stealing the auto rickshaw, they had to eliminate the driver of the auto rickshaw then it cannot but be said that the death so caused to the driver of the auto rickshaw was an accidental murder. The stealing of the auto rickshaw was the object of the felony and the murder that was caused in the said process of stealing the auto rickshaw is only incidental to the act of stealing of the auto rickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing the theft of the autoare unable to accept this contention advanced on behalf of the respondents.We do not see how the object of the two Acts, namely, the Motor Vehicles Act and the Workmens Compensation Act are in any way different. In our opinion, the relevant object of both the Acts are to provide compensation to the victims of accidents. The only difference between the two enactments is that so far as the Workmens Compensation Act is concerned, it is confined to workmen as defined under that Act while the relief provided under Chapters X to XII of the Motor Vehicles Act is available to all the victims of accidents involving a motor vehicle. In this conclusion of ours we are supported by Section 167 of the Motor Vehicles Act as per which provision, it is open to the claimants either to proceed to claim compensation under the Workmens Compensation Act or under the Motor Vehicles Act. A perusal of the objects of the two enactments clearly establishes that both the enactments are beneficial enactments operating in the same field, hence judicially accepted interpretation of the word `death in Workmens Compensation Act is, in our opinion applicable to the interpretation of the word death in the Motor Vehicles Act also.In the instant case, as we have noticed the facts, we have no hesitation in coming to the conclusion that the murder of the deceased (Dasarath Singh) was due to an accident arising out of the use of motor vehicle. Therefore, the trial court rightly came to the conclusion that the claimants were entitled for compensation as claimed by them and the High Court was wrong in coming to the conclusion that the death of Dasarath Singh was not caused by an accident involving the use of motor vehicle.17. This leaves us to consider the second point raised before us by the counsel for the appellant. It is argued on behalf of the appellants that the appeal preferred by the Insurance Company purported to be under Section 173 of the Motor Vehicles Act was not maintainable because prior permission of the Court as required was not obtained by the appellants. In support of this contention of the appellants, reliance is placed on a judgments of this court in the case Shankarayya and Anr. v. United India Insurance Co. Ltd. and Anr., 1998(3) SCC 140.We respectfully agree with the ration laid down in the above case and in view of the fact admittedly the Insurance Company had not obtained leave from the tribunal before filing the above appeal. We are of the opinion that the appeal filed by the Insurance Company before the High Court was not maintainable in law. | 1 | 3,678 | 837 | ### Instruction:
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entirely different. She also contends on the facts of this case no proximity could be presumed between the murder of the driver and the stealing of the auto rickshaw. We are unable to accept this contention advanced on behalf of the respondents. We do not see how the object of the two Acts, namely, the Motor Vehicles Act and the Workmens Compensation Act are in any way different. In our opinion, the relevant object of both the Acts are to provide compensation to the victims of accidents. The only difference between the two enactments is that so far as the Workmens Compensation Act is concerned, it is confined to workmen as defined under that Act while the relief provided under Chapters X to XII of the Motor Vehicles Act is available to all the victims of accidents involving a motor vehicle. In this conclusion of ours we are supported by Section 167 of the Motor Vehicles Act as per which provision, it is open to the claimants either to proceed to claim compensation under the Workmens Compensation Act or under the Motor Vehicles Act. A perusal of the objects of the two enactments clearly establishes that both the enactments are beneficial enactments operating in the same field, hence judicially accepted interpretation of the word `death in Workmens Compensation Act is, in our opinion applicable to the interpretation of the word death in the Motor Vehicles Act also. 14. In the case of Shivaji Dayanu Patil and Anr. v. Vatschala Uttam More, 1991(3) SCC 530 this Court while pronouncing on the interpretation of Section 92A of the Motor Vehicles Act, 1939 held as follows : "Section 92-A was in the nature of a beneficial legislation enacted with a view to confer the benefit of expeditious payment of a limited amount by way of compensation to the victims of an accident arising out of the use of a motor vehicle on the basis of no fault liability. In the matter of interpretation of a beneficial legislation the approach of the courts is to adopt a construction which advances the beneficent purpose underlying the enactment in preference to a construction which tends to defeat that purpose." 15. In that case in regard to the contention of proximity between the accident and the explosion that took place this Court held : "This would show that as compared to the expression "caused by", the expression "arising out of" has a wider connotation. The expression "caused by" was used in Section 95(1)(b)(i) and (ii) and 96(2)(b)(ii) of the Act. In Section 92-A, Parliament, however, chose to use the expression "arising out of" which indicates that for the purpose of awarding compensation under Section 92-A, the causal relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that accident should be connected with the use of the motor vehicle but the said connection need not be direct and immediate. This construction of the expression "arising out of the use of a motor vehicle" in Section 92-A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment." 16. In the instant case, as we have noticed the facts, we have no hesitation in coming to the conclusion that the murder of the deceased (Dasarath Singh) was due to an accident arising out of the use of motor vehicle. Therefore, the trial court rightly came to the conclusion that the claimants were entitled for compensation as claimed by them and the High Court was wrong in coming to the conclusion that the death of Dasarath Singh was not caused by an accident involving the use of motor vehicle.17. This leaves us to consider the second point raised before us by the counsel for the appellant. It is argued on behalf of the appellants that the appeal preferred by the Insurance Company purported to be under Section 173 of the Motor Vehicles Act was not maintainable because prior permission of the Court as required was not obtained by the appellants. In support of this contention of the appellants, reliance is placed on a judgments of this court in the case Shankarayya and Anr. v. United India Insurance Co. Ltd. and Anr., 1998(3) SCC 140. In the said judgment a Division Bench of this court held : "The Insurance Company when impleaded as a party by the Court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for that purpose the Insurance Company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless that procedure is followed, the Insurance Company cannot have a wider defence on merits than what is available to it by way of statutory defence. It is true that the claimants themselves had joined Respondent 1 insurance Company in the claim petition but that was done with a view to thrust the statutory liability on the Insurance Company on account of the contract of the insurance. That was not an order of the Court itself permitting the Insurance Company which was impleaded to avail of a larger defence on merits on being satisfied on the aforesaid two conditions mentioned in Section 170. Consequently, it must be held that on the facts of the present case, Respondent 1 Insurance Company was not entitled to file an appeal on merits of the claim which was awarded by the Tribunal." 18. We respectfully agree with the ration laid down in the above case and in view of the fact admittedly the Insurance Company had not obtained leave from the tribunal before filing the above appeal. We are of the opinion that the appeal filed by the Insurance Company before the High Court was not maintainable in law.
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There is no doubt that `murder. as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a `murder which is not an accident and a `murder which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the act of felony is the kill any particular person then such killing is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder.Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the auto rickshaw, was duty bound to have accepted the demand of fare paying passengers to transport them to the place of their destination. During the course of this duty, if the passengers had decided to commit an act of felony of stealing the auto rickshaw and in the course of achieving the said object of stealing the auto rickshaw, they had to eliminate the driver of the auto rickshaw then it cannot but be said that the death so caused to the driver of the auto rickshaw was an accidental murder. The stealing of the auto rickshaw was the object of the felony and the murder that was caused in the said process of stealing the auto rickshaw is only incidental to the act of stealing of the auto rickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing the theft of the autoare unable to accept this contention advanced on behalf of the respondents.We do not see how the object of the two Acts, namely, the Motor Vehicles Act and the Workmens Compensation Act are in any way different. In our opinion, the relevant object of both the Acts are to provide compensation to the victims of accidents. The only difference between the two enactments is that so far as the Workmens Compensation Act is concerned, it is confined to workmen as defined under that Act while the relief provided under Chapters X to XII of the Motor Vehicles Act is available to all the victims of accidents involving a motor vehicle. In this conclusion of ours we are supported by Section 167 of the Motor Vehicles Act as per which provision, it is open to the claimants either to proceed to claim compensation under the Workmens Compensation Act or under the Motor Vehicles Act. A perusal of the objects of the two enactments clearly establishes that both the enactments are beneficial enactments operating in the same field, hence judicially accepted interpretation of the word `death in Workmens Compensation Act is, in our opinion applicable to the interpretation of the word death in the Motor Vehicles Act also.In the instant case, as we have noticed the facts, we have no hesitation in coming to the conclusion that the murder of the deceased (Dasarath Singh) was due to an accident arising out of the use of motor vehicle. Therefore, the trial court rightly came to the conclusion that the claimants were entitled for compensation as claimed by them and the High Court was wrong in coming to the conclusion that the death of Dasarath Singh was not caused by an accident involving the use of motor vehicle.17. This leaves us to consider the second point raised before us by the counsel for the appellant. It is argued on behalf of the appellants that the appeal preferred by the Insurance Company purported to be under Section 173 of the Motor Vehicles Act was not maintainable because prior permission of the Court as required was not obtained by the appellants. In support of this contention of the appellants, reliance is placed on a judgments of this court in the case Shankarayya and Anr. v. United India Insurance Co. Ltd. and Anr., 1998(3) SCC 140.We respectfully agree with the ration laid down in the above case and in view of the fact admittedly the Insurance Company had not obtained leave from the tribunal before filing the above appeal. We are of the opinion that the appeal filed by the Insurance Company before the High Court was not maintainable in law.
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Dalmia Cement Ltd Vs. Commissioner of Income Tax | by virtue of a transfer whether revocable or not and whether effected before or after the commencement of this Act shall, where there is no transfer of the assets from which the income arises, be chargeable to income-tax as the income of the transferor and shall be included in his total income.""Section 63. "Transfer" and "revocable transfer" defined - for the purposes of Sections 60, 61 and 62 of this Section -(a) a transfer shall be deemed to be revocable if -(i) it contains any provision for the re-transfer directly or indirectly of the whole or any part of the income or assets to the transferor, or(ii) it, in any way, gives the transferor a right to re-assume power directly or indirectly over the whole or any part of the income or assets;(b) "transfer" includes any settlement, trust, covenant, agreement or arrangement." The High Court, while dealing with the matter observed : "Section 60 contemplates as to how the income would be chargeable to income tax when there is no transfer of the assets from which income has arisen. Section 63 clause (b) defines the word "transfer" to include any settlement, trust, covenant, agreement or arrangement. If any document of the nature mentioned in clause (b) exists, it would be considered to be a transfer. In the present case, there are agreements between the parties. The agreements between the parties would be considered to be transfer but in fact, transfer of assets had not taken place till 30th September, 1964. So, whatever income has arisen prior to the transfer of assets, Section 60 clearly contemplates that such an income which has arisen before the actual transfer of assets has taken place, would be chargeable to income tax as the income of the transferor and shall be included in his total income.In the present case, up to 30th September, 1964, there was no transfer of assets and under clause-3 of the supplemental agreement dated 2.11.1962, the profits had to be to the account of the transferee on completion of the sale transaction. Even if there is an agreement for diversion of the profits prior to 30th September, 1964, still, in our opinion, in the light of the provisions contained in Section 60, the profits would be taxable in the hands of the assessee company." 18. It is this finding of the High Court which has been criticised by the appellant and we do find some justification in that regard by reasons of the specific language used by the legislation Section 60 of the Act, has its application only to a case where income accrues to the transferee but the income earning asset or source of income remains with the transferor. As a matter of fact this finding of the High Court that income accrued to the Transferor stands contradicted by the finding that Section 60 has its due application in the facts of the matter under consideration.19. Incidentally, Section 63 contains a rather special definition of "Transfer" for the purposes of Sections 60 to 62 and inter alia includes an "agreement" and in this case the very existence of the agreement to transfer dated 24th July, 1962 rules out and totally excludes the application of Section 60 of the Act. 20. The Tribunal however recorded a finding different from that of the High Court as regards the issue of applicability of Section 60 of the Act. The Tribunal recorded :- "Nor are inclined to accept the contention of the Departmental Representative that even under Section 60 the profits accruing after 30.9.1962 were chargeable in the hands of the company. For one thing the underlying assumption of this argument would be that income had actually accrued to Maneckji or his nominees whereas for reasons given earlier we are unable to accept this assumption. Moreover, according to our reading of Section 60 it relates to an arrangement or settlement according to which both the transfer of income and the retention of the ownership of the assets form parts of one scheme." 21. In view of the above, we do feel it expedient to record that the Tribunals finding as regards the applicability of Section 60 cannot but be ascribed to be otherwise in accordance with the known principles of law, having due regard to language used therein and the High Court unfortunately, we are constrained to record, has in fact misconstrued the provision and thus fell into an error. "Significantly, however, the Tribunal while dealing with the matter has recorded in its order "we are painfully aware of the fact that the case of the assessee is a hard one, that the assessee had not received any part of the purchase price so far and that the position regarding the adjustment of profits earned earlier is equally bad. But we have to apply the provisions of law we find them uninfluenced by the hardships through which tough no fault of its own some assessee may have to pass." 22. While we appreciate the sympathy of the Tribunal towards the assessee and record that hard cases do not make bad laws but both the Tribunal and the High Court erred in appreciating the true perspective of the factual matrix of the matter in issue read with the law as noticed above.23. The other aspect of the matter ought also not be lost sight of tie wit: the assessment of capital gains. There appears to be clear inconsistency between the assessment of capital gams on the transfer of the factories on one hand and finding on accrual of income since the computation of capital gains was effected by treating the gross amount of consideration as the sale price. The Income-tax Officer thus by implication accepted the profits as belonging to the transferee and not to the Transferor - otherwise, the net amount paid alone ought to have been taken as the sale price. The High Courts judgment therefore, does not only suffer from apparent inconsistency but on a totality of the situation is inherently contradictory. | 1[ds]16. Be it noted here, that at no stage of the proceeding up to the High Court, there was any dispute as regards assessees contention of diversion by overriding title. The finding of the High Court that issue of overriding title on the basis of an event which is yet to take place, being not available in the facts of the matter under consideration, cannot in our view be said to be a correct appreciation of law, since on the date of assessment, the event has already taken place and an overriding title has in fact been created by operation of law and there is no escape from it and as such we are unable to record our concurrence therewith.It is this finding of the High Court which has been criticised by the appellant and we do find some justification in that regard by reasons of the specific language used by the legislation Section 60 of the Act, has its application only to a case where income accrues to the transferee but the income earning asset or source of income remains with the transferor. As a matter of fact this finding of the High Court that income accrued to the Transferor stands contradicted by the finding that Section 60 has its due application in the facts of the matter under consideration.19. Incidentally, Section 63 contains a rather special definition of "Transfer" for the purposes of Sections 60 to 62 and inter alia includes an "agreement" and in this case the very existence of the agreement to transfer dated 24th July, 1962 rules out and totally excludes the application of Section 60 of the Act.In view of the above, we do feel it expedient to record that the Tribunals finding as regards the applicability of Section 60 cannot but be ascribed to be otherwise in accordance with the known principles of law, having due regard to language used therein and the High Court unfortunately, we are constrained to record, has in fact misconstrued the provision and thus fell into anhowever, the Tribunal while dealing with the matter has recorded in its order "we are painfully aware of the fact that the case of the assessee is a hard one, that the assessee had not received any part of the purchase price so far and that the position regarding the adjustment of profits earned earlier is equally bad. But we have to apply the provisions of law we find them uninfluenced by the hardships through which tough no fault of its own some assessee may have to pass.While we appreciate the sympathy of the Tribunal towards the assessee and record that hard cases do not make bad laws but both the Tribunal and the High Court erred in appreciating the true perspective of the factual matrix of the matter in issue read with the law as noticed above.23. The other aspect of the matter ought also not be lost sight of tie wit: the assessment of capital gains. There appears to be clear inconsistency between the assessment of capital gams on the transfer of the factories on one hand and finding on accrual of income since the computation of capital gains was effected by treating the gross amount of consideration as the sale price. The Income-tax Officer thus by implication accepted the profits as belonging to the transferee and not to the Transferor - otherwise, the net amount paid alone ought to have been taken as the sale price. The High Courts judgment therefore, does not only suffer from apparent inconsistency but on a totality of the situation is inherently contradictory. | 1 | 4,849 | 638 | ### Instruction:
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by virtue of a transfer whether revocable or not and whether effected before or after the commencement of this Act shall, where there is no transfer of the assets from which the income arises, be chargeable to income-tax as the income of the transferor and shall be included in his total income.""Section 63. "Transfer" and "revocable transfer" defined - for the purposes of Sections 60, 61 and 62 of this Section -(a) a transfer shall be deemed to be revocable if -(i) it contains any provision for the re-transfer directly or indirectly of the whole or any part of the income or assets to the transferor, or(ii) it, in any way, gives the transferor a right to re-assume power directly or indirectly over the whole or any part of the income or assets;(b) "transfer" includes any settlement, trust, covenant, agreement or arrangement." The High Court, while dealing with the matter observed : "Section 60 contemplates as to how the income would be chargeable to income tax when there is no transfer of the assets from which income has arisen. Section 63 clause (b) defines the word "transfer" to include any settlement, trust, covenant, agreement or arrangement. If any document of the nature mentioned in clause (b) exists, it would be considered to be a transfer. In the present case, there are agreements between the parties. The agreements between the parties would be considered to be transfer but in fact, transfer of assets had not taken place till 30th September, 1964. So, whatever income has arisen prior to the transfer of assets, Section 60 clearly contemplates that such an income which has arisen before the actual transfer of assets has taken place, would be chargeable to income tax as the income of the transferor and shall be included in his total income.In the present case, up to 30th September, 1964, there was no transfer of assets and under clause-3 of the supplemental agreement dated 2.11.1962, the profits had to be to the account of the transferee on completion of the sale transaction. Even if there is an agreement for diversion of the profits prior to 30th September, 1964, still, in our opinion, in the light of the provisions contained in Section 60, the profits would be taxable in the hands of the assessee company." 18. It is this finding of the High Court which has been criticised by the appellant and we do find some justification in that regard by reasons of the specific language used by the legislation Section 60 of the Act, has its application only to a case where income accrues to the transferee but the income earning asset or source of income remains with the transferor. As a matter of fact this finding of the High Court that income accrued to the Transferor stands contradicted by the finding that Section 60 has its due application in the facts of the matter under consideration.19. Incidentally, Section 63 contains a rather special definition of "Transfer" for the purposes of Sections 60 to 62 and inter alia includes an "agreement" and in this case the very existence of the agreement to transfer dated 24th July, 1962 rules out and totally excludes the application of Section 60 of the Act. 20. The Tribunal however recorded a finding different from that of the High Court as regards the issue of applicability of Section 60 of the Act. The Tribunal recorded :- "Nor are inclined to accept the contention of the Departmental Representative that even under Section 60 the profits accruing after 30.9.1962 were chargeable in the hands of the company. For one thing the underlying assumption of this argument would be that income had actually accrued to Maneckji or his nominees whereas for reasons given earlier we are unable to accept this assumption. Moreover, according to our reading of Section 60 it relates to an arrangement or settlement according to which both the transfer of income and the retention of the ownership of the assets form parts of one scheme." 21. In view of the above, we do feel it expedient to record that the Tribunals finding as regards the applicability of Section 60 cannot but be ascribed to be otherwise in accordance with the known principles of law, having due regard to language used therein and the High Court unfortunately, we are constrained to record, has in fact misconstrued the provision and thus fell into an error. "Significantly, however, the Tribunal while dealing with the matter has recorded in its order "we are painfully aware of the fact that the case of the assessee is a hard one, that the assessee had not received any part of the purchase price so far and that the position regarding the adjustment of profits earned earlier is equally bad. But we have to apply the provisions of law we find them uninfluenced by the hardships through which tough no fault of its own some assessee may have to pass." 22. While we appreciate the sympathy of the Tribunal towards the assessee and record that hard cases do not make bad laws but both the Tribunal and the High Court erred in appreciating the true perspective of the factual matrix of the matter in issue read with the law as noticed above.23. The other aspect of the matter ought also not be lost sight of tie wit: the assessment of capital gains. There appears to be clear inconsistency between the assessment of capital gams on the transfer of the factories on one hand and finding on accrual of income since the computation of capital gains was effected by treating the gross amount of consideration as the sale price. The Income-tax Officer thus by implication accepted the profits as belonging to the transferee and not to the Transferor - otherwise, the net amount paid alone ought to have been taken as the sale price. The High Courts judgment therefore, does not only suffer from apparent inconsistency but on a totality of the situation is inherently contradictory.
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16. Be it noted here, that at no stage of the proceeding up to the High Court, there was any dispute as regards assessees contention of diversion by overriding title. The finding of the High Court that issue of overriding title on the basis of an event which is yet to take place, being not available in the facts of the matter under consideration, cannot in our view be said to be a correct appreciation of law, since on the date of assessment, the event has already taken place and an overriding title has in fact been created by operation of law and there is no escape from it and as such we are unable to record our concurrence therewith.It is this finding of the High Court which has been criticised by the appellant and we do find some justification in that regard by reasons of the specific language used by the legislation Section 60 of the Act, has its application only to a case where income accrues to the transferee but the income earning asset or source of income remains with the transferor. As a matter of fact this finding of the High Court that income accrued to the Transferor stands contradicted by the finding that Section 60 has its due application in the facts of the matter under consideration.19. Incidentally, Section 63 contains a rather special definition of "Transfer" for the purposes of Sections 60 to 62 and inter alia includes an "agreement" and in this case the very existence of the agreement to transfer dated 24th July, 1962 rules out and totally excludes the application of Section 60 of the Act.In view of the above, we do feel it expedient to record that the Tribunals finding as regards the applicability of Section 60 cannot but be ascribed to be otherwise in accordance with the known principles of law, having due regard to language used therein and the High Court unfortunately, we are constrained to record, has in fact misconstrued the provision and thus fell into anhowever, the Tribunal while dealing with the matter has recorded in its order "we are painfully aware of the fact that the case of the assessee is a hard one, that the assessee had not received any part of the purchase price so far and that the position regarding the adjustment of profits earned earlier is equally bad. But we have to apply the provisions of law we find them uninfluenced by the hardships through which tough no fault of its own some assessee may have to pass.While we appreciate the sympathy of the Tribunal towards the assessee and record that hard cases do not make bad laws but both the Tribunal and the High Court erred in appreciating the true perspective of the factual matrix of the matter in issue read with the law as noticed above.23. The other aspect of the matter ought also not be lost sight of tie wit: the assessment of capital gains. There appears to be clear inconsistency between the assessment of capital gams on the transfer of the factories on one hand and finding on accrual of income since the computation of capital gains was effected by treating the gross amount of consideration as the sale price. The Income-tax Officer thus by implication accepted the profits as belonging to the transferee and not to the Transferor - otherwise, the net amount paid alone ought to have been taken as the sale price. The High Courts judgment therefore, does not only suffer from apparent inconsistency but on a totality of the situation is inherently contradictory.
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COMMISSIONER OF INCOME TAX VI Vs. VIRTUAL SOFT SYSTEMS LTD | term. 12. At the first look, it appears that the method of accounting provided in the Guidance Note of 1995, on the one hand, adjusts the inflated cost of interest of the assets in the balance sheet. Secondly, it captures real income by separating the element of capital recovery (essentially representing repayment of principal amount by the lessee, the principal amount being the net investment in the lease), and the finance income, which is the revenue receipt of the lessor as remuneration/reward for the lessors investment. As per the Guidance Note, the annual lease charge represents recovery of the net investment/fair value of the asset lease term. The finance income reflects a constant periodic rate of return on the net investment of the lessor outstanding in respect of the finance lease. While the finance income represents a revenue receipt to be included in income for the purpose of taxation, the capital recovery element (annual lease charge) is not classifiable as income, as it is not, in essence, a revenue receipt chargeable to income tax. 13. The method of accounting followed, as derived from the ICAIs Guidance Note, is a valid method of capturing real income based on the substance of finance lease transaction. The rule of substance over form is a fundamental principle of accounting, and is in fact, incorporated in the ICAIs Accounting Standards on Disclosure of Accounting Policies being accounting standards which is a kind of guidelines for accounting periods starting from 01.04.1991. It is a cardinal principle of law that the difference between capital recovery and interest or finance income is essential for accounting for such a transaction with reference to its substance. If the same was not carried out, the Respondent would be assessed for income tax not merely on revenue receipts but also on non-revenue items which is completely contrary to the principles of the IT Act and to its Scheme and spirit. 14. The bifurcation of the lease rental is, by no stretch of imagination, an artificial calculation and, therefore, lease equalization is an essential step in the accounting process to ensure that real income from the transaction in the form of revenue receipts only is captured for the purposes of income tax. Moreover, we do not find any express bar in the IT Act which bars the bifurcation of the lease rental. This bifurcation is analogous to the manner in which a bank would treat an EMI payment made by the debtor on a loan advanced by the bank. The repayment of principal would be a balance sheet item and not a revenue item. Only the interest earned would be a revenue receipt chargeable to income tax. Hence, we do not find any force in the contentions of the Revenue that whole revenue from lease shall be subjected to tax under the IT Act. 15. Without a doubt, in a catena of cases, this court has discussed the relevancy of the Guidance Note. While dealing with one of such matters, this Court, in Commissioner of Income Tax-VII, New Delhi vs. Punjab Stainless Steel Industries (2014) 15 SCC 129 held as under: 17. So as to be more accurate about the word Turnover, one can either refer to dictionaries or to material which are published by bodies of Accountants. The Institute of Chartered Accountants of India (hereinafter referred to as the ICAI) has published some material under the head Guidance Note on Tax Audit under Section 44B of the Income Tax Act. The said material has been published so as to guide the members of the ICAI. In our opinion, when a recognized body of Accountants, after due deliberation and consideration publishes certain materials for its members, one can rely upon the same…. 16. In the present case, the relevant Assessment Year is 1999-2000. The main contention of the Revenue is that the Respondent cannot be allowed to claim deduction regarding lease equalization charges since as such there is no express provision regarding such deduction in the IT Act. However, it is apt to note here that the Respondent can be charged only on real income which can be calculated only after applying the prescribed method. The IT Act is silent on such deduction. For such calculation, it is obvious that the Respondent has to take course of Guidance Note prescribed by the ICAI if it is available. Only after applying such method which is prescribed in the Guidance Note, the Respondent can show fair and real income which is liable to tax under the IT Act. Therefore, it is wrong to say that the Respondent claimed deduction by virtue of Guidance Note rather it only applied the method of bifurcation as prescribed by the expert team of ICAI. Further, a conjoint reading of Section 145 of the IT Act read with Section 211 (un-amended) of the Companies Act make it clear that the Respondent is entitled to do such bifurcation and in our view there is no illegality in such bifurcation as it is according to the principles of law. Moreover, the rule of interpretation says that when internal aid is not available then for the proper interpretation of the Statute, the court may take the help of external aid. If a term is not defined in a Statute then its meaning can be taken as is prevalent in ordinary or commercial parlance. Hence, we do not find any force in the contentions of the Revenue that the accounting standards prescribed by the Guidance Note cannot be used to bifurcate the lease rental to reach the real income for the purpose of tax under the IT Act. 17. To sum up, we are of the view that the Respondent is entitled for bifurcation of lease rental as per the accounting standards prescribed by the ICAI. Moreover, there is no express bar in the IT Act regarding the application of such accounting standards. 18. In view of above detailed discussion, we are not inclined to interfere in the impugned decision of the High Court. | 0[ds]The Guidance Note reflects the best practices adopted by the accountants throughout the world. The ICAI is a recognized body vested with the authority to recommend accounting standards for ultimate prescription by the Central Government in consultation with the National Advisory Committee of Accounting Standards for the presentation of true and fair financial statements.10. The purpose behind the amendment in Section 211 of the Companies Act, 1956 was to give clear sight that the accounting standards, as prescribed by the ICAI, shall prevail until the accounting standards are prescribed by the Central Government under this sub-section. The purpose behind the accounting standards was to arrive at a computation of real income after adjusting the permissible deprecation. It is not disputed that these accounting standards are made by the body of experts after extensive study and research.12. At the first look, it appears that the method of accounting provided in the Guidance Note of 1995, on the one hand, adjusts the inflated cost of interest of the assets in the balance sheet. Secondly, it captures real income by separating the element of capital recovery (essentially representing repayment of principal amount by the lessee, the principal amount being the net investment in the lease), and the finance income, which is the revenue receipt of the lessor as remuneration/reward for the lessors investment. As per the Guidance Note, the annual lease charge represents recovery of the net investment/fair value of the asset lease term. The finance income reflects a constant periodic rate of return on the net investment of the lessor outstanding in respect of the finance lease. While the finance income represents a revenue receipt to be included in income for the purpose of taxation, the capital recovery element (annual lease charge) is not classifiable as income, as it is not, in essence, a revenue receipt chargeable to income tax.. The method of accounting followed, as derived from the ICAIs Guidance Note, is a valid method of capturing real income based on the substance of finance lease transaction. The rule of substance over form is a fundamental principle of accounting, and is in fact, incorporated in the ICAIs Accounting Standards on Disclosure of Accounting Policies being accounting standards which is a kind of guidelines for accounting periods starting from 01.04.1991. It is a cardinal principle of law that the difference between capital recovery and interest or finance income is essential for accounting for such a transaction with reference to its substance. If the same was not carried out, the Respondent would be assessed for income tax not merely on revenue receipts but also on non-revenue items which is completely contrary to the principles of the IT Act and to its Scheme and spirit.. The bifurcation of the lease rental is, by no stretch of imagination, an artificial calculation and, therefore, lease equalization is an essential step in the accounting process to ensure that real income from the transaction in the form of revenue receipts only is captured for the purposes of income tax. Moreover, we do not find any express bar in the IT Act which bars the bifurcation of the lease rental. This bifurcation is analogous to the manner in which a bank would treat an EMI payment made by the debtor on a loan advanced by the bank. The repayment of principal would be a balance sheet item and not a revenue item. Only the interest earned would be a revenue receipt chargeable to income tax. Hence, we do not find any force in the contentions of the Revenue that whole revenue from lease shall be subjected to tax under the IT Act.. Without a doubt, in a catena of cases, this court has discussed the relevancy of the Guidance Note. While dealing with one of such matters, this Court, in Commissioner of Income Tax-VII, New Delhi vs. Punjab Stainless Steel Industries (2014) 15 SCC 129 held as under:. So as to be more accurate about the word Turnover, one can either refer to dictionaries or to material which are published by bodies of Accountants. The Institute of Chartered Accountants of India (hereinafter referred to as the ICAI) has published some material under the head Guidance Note on Tax Audit under Section 44B of the Income Tax Act. The said material has been published so as to guide the members of the ICAI. In our opinion, when a recognized body of Accountants, after due deliberation and consideration publishes certain materials for its members, one can rely upon the. In the present case, the relevant Assessment Year is 1999-2000. The main contention of the Revenue is that the Respondent cannot be allowed to claim deduction regarding lease equalization charges since as such there is no express provision regarding such deduction in the IT Act. However, it is apt to note here that the Respondent can be charged only on real income which can be calculated only after applying the prescribed method. The IT Act is silent on such deduction. For such calculation, it is obvious that the Respondent has to take course of Guidance Note prescribed by the ICAI if it is available. Only after applying such method which is prescribed in the Guidance Note, the Respondent can show fair and real income which is liable to tax under the IT Act. Therefore, it is wrong to say that the Respondent claimed deduction by virtue of Guidance Note rather it only applied the method of bifurcation as prescribed by the expert team of ICAI. Further, a conjoint reading of Section 145 of the IT Act read with Section 211 (un-amended) of the Companies Act make it clear that the Respondent is entitled to do such bifurcation and in our view there is no illegality in such bifurcation as it is according to the principles of law. Moreover, the rule of interpretation says that when internal aid is not available then for the proper interpretation of the Statute, the court may take the help of external aid. If a term is not defined in a Statute then its meaning can be taken as is prevalent in ordinary or commercial parlance. Hence, we do not find any force in the contentions of the Revenue that the accounting standards prescribed by the Guidance Note cannot be used to bifurcate the lease rental to reach the real income for the purpose of tax under the IT. To sum up, we are of the view that the Respondent is entitled for bifurcation of lease rental as per the accounting standards prescribed by the ICAI. Moreover, there is no express bar in the IT Act regarding the application of such accounting. In view of above detailed discussion, we are not inclined to interfere in the impugned decision of the High Court | 0 | 3,106 | 1,227 | ### 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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term. 12. At the first look, it appears that the method of accounting provided in the Guidance Note of 1995, on the one hand, adjusts the inflated cost of interest of the assets in the balance sheet. Secondly, it captures real income by separating the element of capital recovery (essentially representing repayment of principal amount by the lessee, the principal amount being the net investment in the lease), and the finance income, which is the revenue receipt of the lessor as remuneration/reward for the lessors investment. As per the Guidance Note, the annual lease charge represents recovery of the net investment/fair value of the asset lease term. The finance income reflects a constant periodic rate of return on the net investment of the lessor outstanding in respect of the finance lease. While the finance income represents a revenue receipt to be included in income for the purpose of taxation, the capital recovery element (annual lease charge) is not classifiable as income, as it is not, in essence, a revenue receipt chargeable to income tax. 13. The method of accounting followed, as derived from the ICAIs Guidance Note, is a valid method of capturing real income based on the substance of finance lease transaction. The rule of substance over form is a fundamental principle of accounting, and is in fact, incorporated in the ICAIs Accounting Standards on Disclosure of Accounting Policies being accounting standards which is a kind of guidelines for accounting periods starting from 01.04.1991. It is a cardinal principle of law that the difference between capital recovery and interest or finance income is essential for accounting for such a transaction with reference to its substance. If the same was not carried out, the Respondent would be assessed for income tax not merely on revenue receipts but also on non-revenue items which is completely contrary to the principles of the IT Act and to its Scheme and spirit. 14. The bifurcation of the lease rental is, by no stretch of imagination, an artificial calculation and, therefore, lease equalization is an essential step in the accounting process to ensure that real income from the transaction in the form of revenue receipts only is captured for the purposes of income tax. Moreover, we do not find any express bar in the IT Act which bars the bifurcation of the lease rental. This bifurcation is analogous to the manner in which a bank would treat an EMI payment made by the debtor on a loan advanced by the bank. The repayment of principal would be a balance sheet item and not a revenue item. Only the interest earned would be a revenue receipt chargeable to income tax. Hence, we do not find any force in the contentions of the Revenue that whole revenue from lease shall be subjected to tax under the IT Act. 15. Without a doubt, in a catena of cases, this court has discussed the relevancy of the Guidance Note. While dealing with one of such matters, this Court, in Commissioner of Income Tax-VII, New Delhi vs. Punjab Stainless Steel Industries (2014) 15 SCC 129 held as under: 17. So as to be more accurate about the word Turnover, one can either refer to dictionaries or to material which are published by bodies of Accountants. The Institute of Chartered Accountants of India (hereinafter referred to as the ICAI) has published some material under the head Guidance Note on Tax Audit under Section 44B of the Income Tax Act. The said material has been published so as to guide the members of the ICAI. In our opinion, when a recognized body of Accountants, after due deliberation and consideration publishes certain materials for its members, one can rely upon the same…. 16. In the present case, the relevant Assessment Year is 1999-2000. The main contention of the Revenue is that the Respondent cannot be allowed to claim deduction regarding lease equalization charges since as such there is no express provision regarding such deduction in the IT Act. However, it is apt to note here that the Respondent can be charged only on real income which can be calculated only after applying the prescribed method. The IT Act is silent on such deduction. For such calculation, it is obvious that the Respondent has to take course of Guidance Note prescribed by the ICAI if it is available. Only after applying such method which is prescribed in the Guidance Note, the Respondent can show fair and real income which is liable to tax under the IT Act. Therefore, it is wrong to say that the Respondent claimed deduction by virtue of Guidance Note rather it only applied the method of bifurcation as prescribed by the expert team of ICAI. Further, a conjoint reading of Section 145 of the IT Act read with Section 211 (un-amended) of the Companies Act make it clear that the Respondent is entitled to do such bifurcation and in our view there is no illegality in such bifurcation as it is according to the principles of law. Moreover, the rule of interpretation says that when internal aid is not available then for the proper interpretation of the Statute, the court may take the help of external aid. If a term is not defined in a Statute then its meaning can be taken as is prevalent in ordinary or commercial parlance. Hence, we do not find any force in the contentions of the Revenue that the accounting standards prescribed by the Guidance Note cannot be used to bifurcate the lease rental to reach the real income for the purpose of tax under the IT Act. 17. To sum up, we are of the view that the Respondent is entitled for bifurcation of lease rental as per the accounting standards prescribed by the ICAI. Moreover, there is no express bar in the IT Act regarding the application of such accounting standards. 18. In view of above detailed discussion, we are not inclined to interfere in the impugned decision of the High Court.
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made by the body of experts after extensive study and research.12. At the first look, it appears that the method of accounting provided in the Guidance Note of 1995, on the one hand, adjusts the inflated cost of interest of the assets in the balance sheet. Secondly, it captures real income by separating the element of capital recovery (essentially representing repayment of principal amount by the lessee, the principal amount being the net investment in the lease), and the finance income, which is the revenue receipt of the lessor as remuneration/reward for the lessors investment. As per the Guidance Note, the annual lease charge represents recovery of the net investment/fair value of the asset lease term. The finance income reflects a constant periodic rate of return on the net investment of the lessor outstanding in respect of the finance lease. While the finance income represents a revenue receipt to be included in income for the purpose of taxation, the capital recovery element (annual lease charge) is not classifiable as income, as it is not, in essence, a revenue receipt chargeable to income tax.. The method of accounting followed, as derived from the ICAIs Guidance Note, is a valid method of capturing real income based on the substance of finance lease transaction. The rule of substance over form is a fundamental principle of accounting, and is in fact, incorporated in the ICAIs Accounting Standards on Disclosure of Accounting Policies being accounting standards which is a kind of guidelines for accounting periods starting from 01.04.1991. It is a cardinal principle of law that the difference between capital recovery and interest or finance income is essential for accounting for such a transaction with reference to its substance. If the same was not carried out, the Respondent would be assessed for income tax not merely on revenue receipts but also on non-revenue items which is completely contrary to the principles of the IT Act and to its Scheme and spirit.. The bifurcation of the lease rental is, by no stretch of imagination, an artificial calculation and, therefore, lease equalization is an essential step in the accounting process to ensure that real income from the transaction in the form of revenue receipts only is captured for the purposes of income tax. Moreover, we do not find any express bar in the IT Act which bars the bifurcation of the lease rental. This bifurcation is analogous to the manner in which a bank would treat an EMI payment made by the debtor on a loan advanced by the bank. The repayment of principal would be a balance sheet item and not a revenue item. Only the interest earned would be a revenue receipt chargeable to income tax. Hence, we do not find any force in the contentions of the Revenue that whole revenue from lease shall be subjected to tax under the IT Act.. Without a doubt, in a catena of cases, this court has discussed the relevancy of the Guidance Note. While dealing with one of such matters, this Court, in Commissioner of Income Tax-VII, New Delhi vs. Punjab Stainless Steel Industries (2014) 15 SCC 129 held as under:. So as to be more accurate about the word Turnover, one can either refer to dictionaries or to material which are published by bodies of Accountants. The Institute of Chartered Accountants of India (hereinafter referred to as the ICAI) has published some material under the head Guidance Note on Tax Audit under Section 44B of the Income Tax Act. The said material has been published so as to guide the members of the ICAI. In our opinion, when a recognized body of Accountants, after due deliberation and consideration publishes certain materials for its members, one can rely upon the. In the present case, the relevant Assessment Year is 1999-2000. The main contention of the Revenue is that the Respondent cannot be allowed to claim deduction regarding lease equalization charges since as such there is no express provision regarding such deduction in the IT Act. However, it is apt to note here that the Respondent can be charged only on real income which can be calculated only after applying the prescribed method. The IT Act is silent on such deduction. For such calculation, it is obvious that the Respondent has to take course of Guidance Note prescribed by the ICAI if it is available. Only after applying such method which is prescribed in the Guidance Note, the Respondent can show fair and real income which is liable to tax under the IT Act. Therefore, it is wrong to say that the Respondent claimed deduction by virtue of Guidance Note rather it only applied the method of bifurcation as prescribed by the expert team of ICAI. Further, a conjoint reading of Section 145 of the IT Act read with Section 211 (un-amended) of the Companies Act make it clear that the Respondent is entitled to do such bifurcation and in our view there is no illegality in such bifurcation as it is according to the principles of law. Moreover, the rule of interpretation says that when internal aid is not available then for the proper interpretation of the Statute, the court may take the help of external aid. If a term is not defined in a Statute then its meaning can be taken as is prevalent in ordinary or commercial parlance. Hence, we do not find any force in the contentions of the Revenue that the accounting standards prescribed by the Guidance Note cannot be used to bifurcate the lease rental to reach the real income for the purpose of tax under the IT. To sum up, we are of the view that the Respondent is entitled for bifurcation of lease rental as per the accounting standards prescribed by the ICAI. Moreover, there is no express bar in the IT Act regarding the application of such accounting. In view of above detailed discussion, we are not inclined to interfere in the impugned decision of the High Court
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Meghraj & Ors Vs. Mst. Bayabai & Ors | which any payment is to be made by the mortgagor, and the mortgagee is bound to accept the condition needs no serious consideration.9. It was next urged that the decree was passed by the Trial Court awarding interest at the rate of 3 per cent per annum and the order of the High Court in appeal modifying the original decree by awarding interest at the rate of 4 per cent was erroneous. Under the decree of the Trial Court interest was awarded at 3 per cent. In appeal interest was awarded by the High Court at 4 per cent. Thereafter by a modification in an application for correction of the decree interest at 4 per cent per annum was awarded from August 12, 1941 to November 10, 1946. It was urged, relying upon the order modifying the rate of interest, that from November 11, 1946 the mortgagees were entitled only to interest as the rate of 3 per cent. There is no substance in that contention also. The High Court by order dated August 10, 1946, observed:"A preliminary decree for the sale shall be drawn accordingly and the defendants (the appellant) are given three months; time from today to pay off the decretal amount. The amount shall carry interest at the rate of 3 per cent per annum from the date of suit to 11-8-1941 and at the rate of 4 per cent per annum from 12-8-1941 to the date of satisfaction."Apparently the decree drawn up by the High Court was not consistent with the directions given in the judgment, and an application was made to rectify certain mistakes in the decree. One of the grounds urged in support of the application was that interest should have been computed only on the principal out of the total of Rs.35,299-1-6. The Court rejected the application holding that the Trial Court had decreed the claim of the mortgagees and that interest was payable on Rupees 35,299-1-6 and the High Court had confirmed the decree holding that the amount of Rs.35,299-1-6 was principal. The High Court observed that it was not relevant to consider whether that decision was right, because there was no application review of judgment. They then directed that "the interest will accordingly be calculated on Rs.35,299-1-6 at 3 per cent from October 5, 1936 till August 11, 1941 and at 4 per cent from August 12, 1941 till November 10, 1946. This comes to Rs.50,810-4-6. The decree will be amended accordingly." Relying upon this direction, counsel for the appellants contended that the High Court by order dated March 31, 1947, restored for the period after November 10, 1946, the rate of interest as originally awarded by the Court of First Instance. We are unable to hold that the direction is capable of that interpretation. By directing that interest at the rate of 4 per cent from August 12, 1941 to November 10, 1946 shall be calculated on Rs.35,299-1-6, it was not, and could not be, intended by the High Court that interest after November 10, 1946, was to be awarded only at the rate of 3 per cent. No such application was made by the debtors. It was apparently contended that the amount of Rs.35,299-1-6 as claimed by the plaintiffs in the original suit included interest, and interest could be computed on the amount which formed the principal. The High Court, in view of the decree passed by the Trial Court and confirmed by it, declined to enter into that controversy and indicated the manner in which the interest was to be calculated between October 5, 1936 and November 10, 1946. The High Court did not reduce the rate of interest for the period after November 10, 1946, i. e, the date fixed for redemption of mortgage under the decree of the High Court.10. Counsel then urged that in any event the mortgagees are not entitled to interest exceeding the principal. Reliance in this connection was placed upon the Madhya Pradesh Money Lenders Act 13 of 1934. Section 9 of that Act provides:"Notwithstanding anything contained in any other enactment for the time being in force, no court original or appellate shall decree, in respect of any loan made before this Act comes into force, on account of arrears of interest, a sum greater than the principal of such loan".The section prohibits the Courts from awarding interest exceeding the principal of the loan. Counsel for the appellants contends that if all the amounts deposited from time to time by the debtors be aggregated, it will appear that an amount exceeding the loan was paid. But the prohibition of the statute is against the making of a decree for arrears of interest exceeding the amount of loan. In the present case the decree awards interest amounting to Rs.746.30, whereas the principal is Rs.33,866.51.11. Finally, it was contended that the Custodian of Evacuee Property is not entitled to claim a decree absolute for sale, and only Mohamad Ayyub - one of the partners in the firm of Seth Haroon and Sons - may alone by given a decree absolute in respect of his share. That contention is futile. The Court is concerned at this stage to pass a decree absolute for sale in a mortgage suit. It is not concerned to determine the respective rights of the mortgagees inter se. The mortgagees interest is fully represented before the Court. Whether or not the Custodian of evacuee Property is entitled to the money or that the evacuees have a subsisting interest is a matter which cannot be decided in this appeal. That was made clear by the judgment of the High Court in the application filed by the Custodian of Evacuee Property by order dated November 12, 1962, when the High Court observed:"Time has not come yet to determine this question and it is not necessary at this stage to decide what are the respective rights of the evacuees in the property which is before the Court as between the evacuee-plaintiffs and the Custodian".12. | 0[ds]4. Under the preliminary decree an amount of Rs.42,430-2-6 was declared due upto June 23, 1941 towards principal and interest. The mortgagors made no payments under the decree directly to the mortgagees.But from time to time they claim to have made deposits in the Court under Order 21, Rule 1 of the Code of Civil Procedure, and in depositing some of the amounts they stated that the payments were towards the principal due. But there is no evidence on the record that the mortgagees were informed that the amounts were deposited towards the principal due, nor is there evidence that the mortgagees accepted the amounts towards the principal. For quite a long time the mortgagees did not withdraw the amount lying in Court. Unless the mortgagees were informed that the mortgagors had deposited the amount only towards the principal and not towards the interest, and the mortgagees agreed to withdraw the money from the Court accepting the conditional deposit, the normal rule that the amounts deposited in Court should first be applied towards satisfaction of the interest and costs and thereafter towards the principal wouldthe normal rule is that in the case of a debt due with interest any payment made by the debtor is in the first instance to be applied towards satisfaction of interest and thereafter to the principal. It was for the mortgagors to plead and prove an agreement - that the amounts which were deposited in Court by the mortgagors were accepted by the mortgagees subject to a condition imposed by the mortgagors In the present case there is no evidence which supports the contention raised by counsel for thethe account submitted by the mortgagees shows clearly that they had given credit for the amounts deposited towards the interest and costs in the first instance and the balance only towards the principal. The account submitted by the mortgagees clearly negatives the plea of theis no substance in that contentionthe decree drawn up by the High Court was not consistent with the directions given in the judgment, and an application was made to rectify certain mistakes in the decree. One of the grounds urged in support of the application was that interest should have been computed only on the principal out of the total of Rs.35,299-1-6. The Court rejected the application holding that the Trial Court had decreed the claim of the mortgagees and that interest was payable on Rupees 35,299-1-6 and the High Court had confirmed the decree holding that the amount of Rs.35,299-1-6 was principal. The High Court observed that it was not relevant to consider whether that decision was right, because there was no application review of judgment. They then directed that "the interest will accordingly be calculated on Rs.35,299-1-6 at 3 per cent from October 5, 1936 till August 11, 1941 and at 4 per cent from August 12, 1941 till November 10, 1946. This comes to Rs.50,810-4-6. The decree will be amended accordingly." Relying upon this direction, counsel for the appellants contended that the High Court by order dated March 31, 1947, restored for the period after November 10, 1946, the rate of interest as originally awarded by the Court of First Instance. We are unable to hold that the direction is capable of that interpretation. By directing that interest at the rate of 4 per cent from August 12, 1941 to November 10, 1946 shall be calculated on Rs.35,299-1-6, it was not, and could not be, intended by the High Court that interest after November 10, 1946, was to be awarded only at the rate of 3 per cent. No such application was made by the debtors. It was apparently contended that the amount of Rs.35,299-1-6 as claimed by the plaintiffs in the original suit included interest, and interest could be computed on the amount which formed the principal. The High Court, in view of the decree passed by the Trial Court and confirmed by it, declined to enter into that controversy and indicated the manner in which the interest was to be calculated between October 5, 1936 and November 10, 1946. The High Court did not reduce the rate of interest for the period after November 10, 1946, i. e, the date fixed for redemption of mortgage under the decree of the Highcontention is futile. The Court is concerned at this stage to pass a decree absolute for sale in a mortgage suit. It is not concerned to determine the respective rights of the mortgagees inter se. The mortgagees interest is fully represented before the Court. Whether or not the Custodian of evacuee Property is entitled to the money or that the evacuees have a subsisting interest is a matter which cannot be decided in this appeal. That was made clear by the judgment of the High Court in the application filed by the Custodian of Evacuee Property by order dated November 12, 1962, | 0 | 2,519 | 880 | ### Instruction:
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which any payment is to be made by the mortgagor, and the mortgagee is bound to accept the condition needs no serious consideration.9. It was next urged that the decree was passed by the Trial Court awarding interest at the rate of 3 per cent per annum and the order of the High Court in appeal modifying the original decree by awarding interest at the rate of 4 per cent was erroneous. Under the decree of the Trial Court interest was awarded at 3 per cent. In appeal interest was awarded by the High Court at 4 per cent. Thereafter by a modification in an application for correction of the decree interest at 4 per cent per annum was awarded from August 12, 1941 to November 10, 1946. It was urged, relying upon the order modifying the rate of interest, that from November 11, 1946 the mortgagees were entitled only to interest as the rate of 3 per cent. There is no substance in that contention also. The High Court by order dated August 10, 1946, observed:"A preliminary decree for the sale shall be drawn accordingly and the defendants (the appellant) are given three months; time from today to pay off the decretal amount. The amount shall carry interest at the rate of 3 per cent per annum from the date of suit to 11-8-1941 and at the rate of 4 per cent per annum from 12-8-1941 to the date of satisfaction."Apparently the decree drawn up by the High Court was not consistent with the directions given in the judgment, and an application was made to rectify certain mistakes in the decree. One of the grounds urged in support of the application was that interest should have been computed only on the principal out of the total of Rs.35,299-1-6. The Court rejected the application holding that the Trial Court had decreed the claim of the mortgagees and that interest was payable on Rupees 35,299-1-6 and the High Court had confirmed the decree holding that the amount of Rs.35,299-1-6 was principal. The High Court observed that it was not relevant to consider whether that decision was right, because there was no application review of judgment. They then directed that "the interest will accordingly be calculated on Rs.35,299-1-6 at 3 per cent from October 5, 1936 till August 11, 1941 and at 4 per cent from August 12, 1941 till November 10, 1946. This comes to Rs.50,810-4-6. The decree will be amended accordingly." Relying upon this direction, counsel for the appellants contended that the High Court by order dated March 31, 1947, restored for the period after November 10, 1946, the rate of interest as originally awarded by the Court of First Instance. We are unable to hold that the direction is capable of that interpretation. By directing that interest at the rate of 4 per cent from August 12, 1941 to November 10, 1946 shall be calculated on Rs.35,299-1-6, it was not, and could not be, intended by the High Court that interest after November 10, 1946, was to be awarded only at the rate of 3 per cent. No such application was made by the debtors. It was apparently contended that the amount of Rs.35,299-1-6 as claimed by the plaintiffs in the original suit included interest, and interest could be computed on the amount which formed the principal. The High Court, in view of the decree passed by the Trial Court and confirmed by it, declined to enter into that controversy and indicated the manner in which the interest was to be calculated between October 5, 1936 and November 10, 1946. The High Court did not reduce the rate of interest for the period after November 10, 1946, i. e, the date fixed for redemption of mortgage under the decree of the High Court.10. Counsel then urged that in any event the mortgagees are not entitled to interest exceeding the principal. Reliance in this connection was placed upon the Madhya Pradesh Money Lenders Act 13 of 1934. Section 9 of that Act provides:"Notwithstanding anything contained in any other enactment for the time being in force, no court original or appellate shall decree, in respect of any loan made before this Act comes into force, on account of arrears of interest, a sum greater than the principal of such loan".The section prohibits the Courts from awarding interest exceeding the principal of the loan. Counsel for the appellants contends that if all the amounts deposited from time to time by the debtors be aggregated, it will appear that an amount exceeding the loan was paid. But the prohibition of the statute is against the making of a decree for arrears of interest exceeding the amount of loan. In the present case the decree awards interest amounting to Rs.746.30, whereas the principal is Rs.33,866.51.11. Finally, it was contended that the Custodian of Evacuee Property is not entitled to claim a decree absolute for sale, and only Mohamad Ayyub - one of the partners in the firm of Seth Haroon and Sons - may alone by given a decree absolute in respect of his share. That contention is futile. The Court is concerned at this stage to pass a decree absolute for sale in a mortgage suit. It is not concerned to determine the respective rights of the mortgagees inter se. The mortgagees interest is fully represented before the Court. Whether or not the Custodian of evacuee Property is entitled to the money or that the evacuees have a subsisting interest is a matter which cannot be decided in this appeal. That was made clear by the judgment of the High Court in the application filed by the Custodian of Evacuee Property by order dated November 12, 1962, when the High Court observed:"Time has not come yet to determine this question and it is not necessary at this stage to decide what are the respective rights of the evacuees in the property which is before the Court as between the evacuee-plaintiffs and the Custodian".12.
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4. Under the preliminary decree an amount of Rs.42,430-2-6 was declared due upto June 23, 1941 towards principal and interest. The mortgagors made no payments under the decree directly to the mortgagees.But from time to time they claim to have made deposits in the Court under Order 21, Rule 1 of the Code of Civil Procedure, and in depositing some of the amounts they stated that the payments were towards the principal due. But there is no evidence on the record that the mortgagees were informed that the amounts were deposited towards the principal due, nor is there evidence that the mortgagees accepted the amounts towards the principal. For quite a long time the mortgagees did not withdraw the amount lying in Court. Unless the mortgagees were informed that the mortgagors had deposited the amount only towards the principal and not towards the interest, and the mortgagees agreed to withdraw the money from the Court accepting the conditional deposit, the normal rule that the amounts deposited in Court should first be applied towards satisfaction of the interest and costs and thereafter towards the principal wouldthe normal rule is that in the case of a debt due with interest any payment made by the debtor is in the first instance to be applied towards satisfaction of interest and thereafter to the principal. It was for the mortgagors to plead and prove an agreement - that the amounts which were deposited in Court by the mortgagors were accepted by the mortgagees subject to a condition imposed by the mortgagors In the present case there is no evidence which supports the contention raised by counsel for thethe account submitted by the mortgagees shows clearly that they had given credit for the amounts deposited towards the interest and costs in the first instance and the balance only towards the principal. The account submitted by the mortgagees clearly negatives the plea of theis no substance in that contentionthe decree drawn up by the High Court was not consistent with the directions given in the judgment, and an application was made to rectify certain mistakes in the decree. One of the grounds urged in support of the application was that interest should have been computed only on the principal out of the total of Rs.35,299-1-6. The Court rejected the application holding that the Trial Court had decreed the claim of the mortgagees and that interest was payable on Rupees 35,299-1-6 and the High Court had confirmed the decree holding that the amount of Rs.35,299-1-6 was principal. The High Court observed that it was not relevant to consider whether that decision was right, because there was no application review of judgment. They then directed that "the interest will accordingly be calculated on Rs.35,299-1-6 at 3 per cent from October 5, 1936 till August 11, 1941 and at 4 per cent from August 12, 1941 till November 10, 1946. This comes to Rs.50,810-4-6. The decree will be amended accordingly." Relying upon this direction, counsel for the appellants contended that the High Court by order dated March 31, 1947, restored for the period after November 10, 1946, the rate of interest as originally awarded by the Court of First Instance. We are unable to hold that the direction is capable of that interpretation. By directing that interest at the rate of 4 per cent from August 12, 1941 to November 10, 1946 shall be calculated on Rs.35,299-1-6, it was not, and could not be, intended by the High Court that interest after November 10, 1946, was to be awarded only at the rate of 3 per cent. No such application was made by the debtors. It was apparently contended that the amount of Rs.35,299-1-6 as claimed by the plaintiffs in the original suit included interest, and interest could be computed on the amount which formed the principal. The High Court, in view of the decree passed by the Trial Court and confirmed by it, declined to enter into that controversy and indicated the manner in which the interest was to be calculated between October 5, 1936 and November 10, 1946. The High Court did not reduce the rate of interest for the period after November 10, 1946, i. e, the date fixed for redemption of mortgage under the decree of the Highcontention is futile. The Court is concerned at this stage to pass a decree absolute for sale in a mortgage suit. It is not concerned to determine the respective rights of the mortgagees inter se. The mortgagees interest is fully represented before the Court. Whether or not the Custodian of evacuee Property is entitled to the money or that the evacuees have a subsisting interest is a matter which cannot be decided in this appeal. That was made clear by the judgment of the High Court in the application filed by the Custodian of Evacuee Property by order dated November 12, 1962,
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K. LAKSHIMINARAYANAN Vs. UNION OF INDIA | as contained in paragraph No. 5. The qualifications and disqualifications to become a member or continue to be a member of a Legislative Assembly have already been provided in the Act, 1963. The qualifications and disqualifications for members of Legislative Assembly are provided in the Act, 1963 and other relevant Statutes, which are always to be kept in mind, while exercising any Statutory functions by the Central Government. We, thus, are of the view tat not only recommendation made in paragraph No. 5(iv) but all the recommendations made in Paragraph No. 5 deserves to be set aside. In result, all recommendations as made in Paragraph No. 5 of the impugned judgment are set aside. Issue No.7 92. One of the submissions, which has been pressed by Shri Kapil Sibal is that even if the nominated members have right to vote in the proceeding of Assembly, they have no right to vote in two circumstances, i.e. budget and no confidence motion against the Government. Article 239A which provides for composition of Union Territory of Puducherry itself contemplated that the Parliament, may by law, create a body, (i) whether elected or; (ii) partly nominated and partly elected, to function as a Legislature for the Union Territory of Puducherry. Under Article 239, the Parliament has enacted the law, i.e., the Government of Union Territory Act, 1963, Section 3 of which provides that there shall be a Legislative Assembly for each Union territory. The total number of seats in the Legislative Assembly of the Union territory to be filled by persons chosen by direct election shall be thirty and the Central Government may nominate not more than three persons, to be members of the Legislative Assembly of the Union territory. Thus, the composition of Legislative Assembly itself consists of both persons chosen by direct election and persons nominated by the Central Government. Both elected and nominated persons are part of Legislative Assembly. The provisions of Act, 1963 refers to members of the Legislative Assembly. Section 11 provides that every member of the Legislative Assembly of the Union territory shall, before taking his seat, make and subscribe before the Administrator, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the First Schedule. The expression every member of the Legislative Assembly of the Union territory shall include both elected and nominated members. It is further clarified by First Schedule of the Act, 1963, which contains the forms of oaths and affirmations, which expressly refers both elected and nominated members. 93. Section 12 deals with the voting in the Assembly, which is as follows:- 12. Voting in Assembly, power of Assembly to act notwithstanding vacancies and quorum. (1) Save as otherwise provided in this Act, all questions at any sitting of the Legislative Assembly of the Union territory shall be determined by a majority of votes of the members present and voting other than the Speaker or person acting as such. (2) The Speaker or person acting as such shall not vote in the first instance but shall have and exercise a casting vote in the case of an equality of votes. (3) The Legislative Assembly of the Union territory shall have power to act notwithstanding any vacancy in the membership thereof, and any proceedings in the Legislative Assembly of the Union territory shall be valid notwithstanding that it is discovered subsequently that some person who was not entitled so to do, sat or voted or otherwise took part in the proceedings. (4) The quorum to constitute a meeting of the Legislative Assembly of the Union territory shall be one-third of the total number of members of the Assembly. (5) If at any time during a meeting of the Legislative Assembly of the Union territory there is no quorum, it shall be the duty of the Speaker, or person acting as such, either to adjourn the Assembly or to suspend the meeting until there is a quorum. 94. Section 12(1) provides that all questions at any sitting of the Legislative Assembly of the Union territory shall be determined by a majority of votes of the members present and voting other than the Speaker or person acting as such. When the expression used is votes of members present, obviously the members of the Assembly both elected and nominated person has to be counted, we cannot while interpreting Section 12(1) exclude the nominated members. Further Section 12(1) uses the expression all questions at any sitting of the Legislative Assembly, the expression all questions shall include all matters, which are to be decided in any sitting of the Legislative Assembly. The Statutory provision does not give indication that nominated members have no right to vote on budget and no confidence motion against the Government. To accept the submission of Shri Sibal shall be adding words to provision of Section 12, which are clear and express. Further, sub-section(1) provides that in the voting majority of the votes of the members present and voting, the speaker shall not be a person, who shall vote. When provision of sub-section(1) clearly provides no voting by Speaker, if intention of Legislature was to exclude the votes of nominated members, the said expression was bound to find included in the sub-section(1). The conclusion is inescapable that all members including the nominated members are entitled to vote in the sitting of the Legislative Assembly and the submission of Shri Sibal that nominated members cannot exercise vote in budget and no confidence motion has to be rejected. Other provisions like sub-section (4) of Section 12, which provides for quorum to constitute a meeting of the Legislative Assembly used the word one-third of the total number of members of the Assembly, members of the Assembly obviously will include both elected and nominated members. Thus, there is no basis for submission raised by Shri Sibal that nominated members cannot exercise their vote in budget and no confidence motion against the Government. The issue is answered accordingly. | 0[ds]21. Thus, it is clear that the definition of Central Government, which means the President is not controlled by the second expression and shall include the administrator. The ordinary or popular meaning of the word the President occurring in Section 3(8)(b) has to be given and the second part of the definition shall not in any way control or affect the first part of the definition as observed above. In the definition of Central Government, an administrator shall be read when he has been authorised or delegated a particular function under the circumstances as indicated above. No statutory rules or any delegation has been referred to or brought on record under which the administrator is entitled or authorised to make nomination in the Legislative Assembly of the Union Territory of Puducherry. Thus, in the present case, the definition of Central Government, as occurring in Section 3(3) of the Act, 1963 has to be read as to mean the President and not the administrator. The issue is answered accordingly26. As per Rule 48 with regard to matters referred to in sub-rule (2) of Rule 4, the Administrator may, if he deems fit, either consult his Council or the Chief Minister, before exercising of his powers or discharging his functions in respect of that matter. But the question which needs to be answered for the present case is as to whether the nomination of a member in the Legislative Assembly of Puducherry is covered by expression remaining business of the Government. The Government has been defined in Rule 2(f) as the Government of Puducherry. The Government occurring in Rule 4(2) cannot be stretched to be Central Government. When Section 3(3) of Act, 1963 empowers the Central Government to nominate not more than three persons to the Legislative Assembly of the Union Territory, it is the business of the Central Government to make nominations as per Parliamentary law27. The business of the Government as occurring in Rule 4 has to be business which under any law is to be performed by the Government of Puducherry. Article 239A of the Constitution provides that Parliament may by law create a body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union Territory or Council of Ministers or both with such Constitution, powers and functions, in each case, as may be specified in the law28. The expression law used in Article 239A(1) is a Parliamentary law. When the Constitution expressly provides that it is the Parliament which may provide by law, constitution of Legislature for the Union Territory, it is the Parliament alone which can provide for constitution of Legislative Assembly for Union Territory under the Act, 1963. Section 3 does provide for constitution of Legislative Assembly for Union Territory with thirty members to be elected members and three members to be nominated by the Central Government. When the Parliamentary law as envisaged by Article 239A provides for the constitution of Legislative Assembly of the Union Territory which also includes nomination, the said constitution which also includes nomination can not be the business of the Government of Puducherry. The nominations of the members to the Legislative Assembly of Puducherry thus can never be covered by expression remaining business of the Government as occurring in Rule 4(2). When Rule 4(2) itself is not attracted in reference to the nomination in the Legislative Assembly, there is no occasion of applicability of Rule 48 that is consultation with the Council of Ministers or the Chief Minister by the Administrator. We, thus, do not find any substance in the submission of Shri Kapil Sibal that nomination in the Legislative Assembly in the Puducherry is the business of the Government of Puducherry and is to be exercised in accordance with Rule 4(2) read with Rule 48. The nomination in the Legislative Assembly in the Puducherry is to be made by the Central Government by virtue of Article 239A read with Section 3(3) of the Act, 196332. Thus, as per Transaction of Business Rules, the matter of nomination in the Legislative Assembly of Puducherry not being a matter in regard to consultation with other departments and submission of the cases to the Prime Minister, the Cabinet and its Committees and the President, the above business is to be disposed of by or under the general or special orders or the directions of the Minister-in-charge that is Home Minister33. In view of the foregoing discussion, we are of the clear opinion that nomination in the Legislative Assembly of Puducherry is not the Business of the Government of Puducherry. It is a business of Central Government as per Section 3(3) of Act, 1963 which is to be carried out in accordance with the Government of India (Allocation of Business) Rules, 1961 and Government of India (Transaction of Business) Rules, 1961. The issue is answered accordingly52. It has been laid down by this Court in the above cases, which is clear from above precedents that Indian Constitution has adopted federal structure. Although, it is not in the strict mould of federalism as understood in theory. That is why, different Constitution Benches of this Court have termed the Indian Constitution as a quasi-federal but the essential characteristics of the federal system are ingrained in the Constitution and reflect in different Constitutional provisions which are (i) the distribution of legislative and executive power between the Union and the States, (ii) the distribution of such legislative and executive power is by the Constitution itself, and (iii) an independent judiciary to interpret the Constitutional provisions and lay down validly in case of any dispute or doubt53. The concepts of cooperative federalism, collaborative federalism and pragmatic federalism as has been noticed by the Constitution Bench in State (NCT Of Delhi) (supra) essentially engraft the same concept, i.e. faithful discharge of the functions, both Union and States have to follow Constitutional principles and not to encroach in the field reserved to other by the Constitution54. The principle of federalism as adopted in the constitution of India are well settled as noticed above. The submission, which needs to be answered in the present case is as to whether the federal principles as ingrained in the Constitution are in any manner sacrificed in the present case, i.e., by nominations made by Central Government without concurrence of the Government of Union Territory of Puducherry. Article 239A by which creation of local Legislatures or Council of Ministers or both for certain Union Territories was provided by the Constitution (Fourteenth Amendment) Act, 1962 empowering the Parliament by law, to create for the Union Territory of Puducherry, a body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union Territory, or a Council of Ministers, or both with such constitution, powers and functions, in each case, as may be specified in the law. The Constitution, thus, by Article 239A has empowered the Parliament to create Legislature for the Union Territory by law with such constitution, powers and functions as may be specified in the law. Thus, it is the Constitution itself, which is empowering Parliament to provide by law for Constitution of Union Territory. Further, the Legislature as a body contemplated by Article 239A is a body, whether elected or partly nominated and partly elected. Thus, the Constitution provision itself contemplate creation of Legislature whether elected or partly nominated and partly elected. When the Constitution itself empowers the Parliament to frame law to create a body, which may be partly nominated and partly elected and Section 3 of the Act, 1963, which provide for thirty seats to be filled up by persons chosen by direct election and three seats by nominations made by the Central Government, we fail to see that how the law made by Parliament or nominations made by Central Government breaches the principles of federalism. The Constitution of Legislative body for Union Territory being entrusted to the Parliament by Constitution and there being no indication in the Constitutional provision or provisions of the Act, 1963 that said nomination has to be made with concurrence of Government of Union Territory of Puducherry, we fail to see any substance in the argument of Shri Kapil Sibal that by nominations made by Central Government, federal principles or principle of cooperative federalism has been violated. The concept of federalism itself envisages distribution of power between Union and States. It is further to be noticed that Union Territories are not States. These Union Territories, ordinarily, belong to the Union (i.e. the Central Government) and therefore they are called Union Territories. That is why they are governed under the administrative control of the President of India. That is the clear purport behind Article 239. However, to a limited extent, the power of the Union is diluted with respect to Puducherry vide Article 239A. At the same time, this constitutional provision, i.e. Article 239A. With regard to the Union Territory of Puducherry itself envisages the constitution of Legislative Council partly by nomination and partly by election. Further, specific authority to nominate in the Legislative Council has been conferred by law i.e. under Section 3 to the Central Government. Thus no breach of federal principles are made out and the submission on the basis of breach of federal principles in nomination by the Central Government is unfounded65. The above debates in the Constituent Assembly clearly indicate that Constitutional conventions were very much in the contemplation during the debates in the Constituent Assembly. Conventions were expected to grow from time to time and the President and Governors in their respective spheres were to be guided by those conventions68. The constitutional conventions are born and recognised in working of the Constitution. The purpose and object of constitutional convention is to ensure that the legal framework of the Constitution is operated in accordance with constitutional values and constitutional morality. The constitutional conventions always aims to achieve higher values and objectives enshrined in the Constitution. The conventions are not static but can change with the change in constitutional values and constitutional interpretations. No constitutional convention can be recognised or implemented which runs contrary to the expressed constitutional provisions or contrary to the underlined constitutional objectives and aims which Constitution sought to achieve83. We will take up the three questions which are to be posed for deciding the question. First is what are the. From the facts noticed above, although it is indicated that on several occasions on the recommendations of the Chief Minister/LG nominations were made by the Central Government, one relevant fact cannot be lost sight that recommendations made by CM/LG were readily accepted by the Central Government when the Government of Puducherry and the Central Government were of the same political party or were of allies. But the instance of year 1995 indicates that the recommendations made by Chief Minister were not followed and the nominations were made taking one name from Chief Ministers recommendation, one name from Puducherry Pradesh Congress Committee and one name at the instance of the Central Government itself which nominations, however, subsequently were cancelled. In the year 2001 recommendations made by Chief Minister and LG were not accepted and no nominations were made. Similarly, in the year 2011 recommendations were made by Chief Minister and LG but no nominations were made. The above facts does not indicate uniform precedent in making nominations by the Central Government84. Now, we come to the second test that is did the actors in the precedents believed that they were bound by the rules.The said test is not satisfied in the present case since more than one occasion There is material on records that the Central Government concluded that it is not bound by any rule that recommendations made by Chief Minister is to be accepted by the Central Government or recommendations of Chief Minister is a condition precedent for exercising power under sub-section (3) of Section (3). No uniform procedure was followed nor the Central Government was under the belief that it is bound under the Rule to accept the recommendations made by the Chief Minister. It is true that there is no inhibition in the Central Government considering the recommendations sent by Chief Minister or LG or ask for suitable names from Chief Minister/LG or even suggests suitable names to the Chief Minister/LG but the fact that the Central Government can consider the recommendations or call for names is not akin to saying that there was any precedent or rule that unless the names are recommended by Chief Minister the Central Government is incapacitated in exercising its powers under sub-section (3) of Section 3 of the Act, 1963. The instance where the Central Government readily accepted recommendations made by LG or Chief Minister which emanated from the Government belonging to the same political party cannot be said to be action of then Central Government by virtue of any rule or convention rather the acts have to be treated as convenient exercise of power. The Central Government can receive input from any quarter including the Chief Minister or LG for nomination87. The above judgment although was considering law made by the Parliament where in the present case we are concerned with the exercise of statutory power of the Central Government under sub-section (3) of Section 3 of the Act, 1963. In exercising the power under Section 3(3) no particular statutory procedure having been prescribed except the exercise of power as per Allocation of Business Rules and Transaction of Business Rules, 1961 nominations made cannot be held to be vitiated on the submission that a particular procedure which was followed in some earlier cases was not followed88. We do not find any established practice or convention to the fact that names for nominations to members of the Legislative Assembly has to emanate from Chief Minister and can be made by the Central Government only after concurrence by Chief Minister. Both the issues are answered accordingly90. We have perused the recommendations made in Paragraph No. 5 of the judgment of Justice M. Sundar. The recommendations contained in paragraph No. 5 are nothing but recommendations to the Parliament to frame legislation on various aspects as enumerated in the recommendation. We have, in the foregoing discussions, concluded that it is the Central Government, which is under Section 3(3) empowered to nominate members in the Legislative Assembly of Union Territory. The procedure and manner of taking decision by Central Government has already been regulated by Rules of Business framed by President in exercise of power under Article 77 of the Constitution of India. The Rules framed by President of India under Article 77(3) are applicable to all executive actions of the Central Government including Constitutional and Statutory functions.91. There being already Rules of Business for carrying out the functions by the Central Government as per Article 77(3) of the Constitution of India, we fail to see any justification for making recommendation in paragraph No. 5 of the impugned judgment. Furthermore, the power is to be exercised by Central Government and it is to be presumed that Central Government, in exercise of its power, shall be guided by objective and rational considerations. We, however, hasten to add that there is no inhibition in Central government or the Legislature to make Rules or a Statute for more convenient transaction of business regarding nominations. Recommendations to the Legislature and the high Constitution authorities are not made in a routine manner and we are of the view that High Court ought to have desisted for making any recommendations as contained in paragraph No. 5. The qualifications and disqualifications to become a member or continue to be a member of a Legislative Assembly have already been provided in the Act, 1963. The qualifications and disqualifications for members of Legislative Assembly are provided in the Act, 1963 and other relevant Statutes, which are always to be kept in mind, while exercising any Statutory functions by the Central Government. We, thus, are of the view tat not only recommendation made in paragraph No. 5(iv) but all the recommendations made in Paragraph No. 5 deserves to be set aside. In result, all recommendations as made in Paragraph No. 5 of the impugned judgment are set aside92. One of the submissions, which has been pressed by Shri Kapil Sibal is that even if the nominated members have right to vote in the proceeding of Assembly, they have no right to vote in two circumstances, i.e. budget and no confidence motion against the Government. Article 239A which provides for composition of Union Territory of Puducherry itself contemplated that the Parliament, may by law, create a body, (i) whether elected or; (ii) partly nominated and partly elected, to function as a Legislature for the Union Territory of Puducherry. Under Article 239, the Parliament has enacted the law, i.e., the Government of Union Territory Act, 1963, Section 3 of which provides that there shall be a Legislative Assembly for each Union territory. The total number of seats in the Legislative Assembly of the Union territory to be filled by persons chosen by direct election shall be thirty and the Central Government may nominate not more than three persons, to be members of the Legislative Assembly of the Union territory. Thus, the composition of Legislative Assembly itself consists of both persons chosen by direct election and persons nominated by the Central Government. Both elected and nominated persons are part of Legislative Assembly. The provisions of Act, 1963 refers to members of the Legislative Assembly. Section 11 provides that every member of the Legislative Assembly of the Union territory shall, before taking his seat, make and subscribe before the Administrator, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the First Schedule. The expression every member of the Legislative Assembly of the Union territory shall include both elected and nominated members. It is further clarified by First Schedule of the Act, 1963, which contains the forms of oaths and affirmations, which expressly refers both elected and nominated members94. Section 12(1) provides that all questions at any sitting of the Legislative Assembly of the Union territory shall be determined by a majority of votes of the members present and voting other than the Speaker or person acting as such. When the expression used is votes of members present, obviously the members of the Assembly both elected and nominated person has to be counted, we cannot while interpreting Section 12(1) exclude the nominated members. Further Section 12(1) uses the expression all questions at any sitting of the Legislative Assembly, the expression all questions shall include all matters, which are to be decided in any sitting of the Legislative Assembly. The Statutory provision does not give indication that nominated members have no right to vote on budget and no confidence motion against the Government. To accept the submission of Shri Sibal shall be adding words to provision of Section 12, which are clear and express. Further, sub-section(1) provides that in the voting majority of the votes of the members present and voting, the speaker shall not be a person, who shall vote. When provision of sub-section(1) clearly provides no voting by Speaker, if intention of Legislature was to exclude the votes of nominated members, the said expression was bound to find included in the sub-section(1). The conclusion is inescapable that all members including the nominated members are entitled to vote in the sitting of the Legislative Assembly and the submission of Shri Sibal that nominated members cannot exercise vote in budget and no confidence motion has to be rejected. Other provisions like sub-section (4) of Section 12, which provides for quorum to constitute a meeting of the Legislative Assembly used the word one-third of the total number of members of the Assembly, members of the Assembly obviously will include both elected and nominated members. Thus, there is no basis for submission raised by Shri Sibal that nominated members cannot exercise their vote in budget and no confidence motion against the Government. The issue is answered accordingly. | 0 | 21,783 | 3,708 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
as contained in paragraph No. 5. The qualifications and disqualifications to become a member or continue to be a member of a Legislative Assembly have already been provided in the Act, 1963. The qualifications and disqualifications for members of Legislative Assembly are provided in the Act, 1963 and other relevant Statutes, which are always to be kept in mind, while exercising any Statutory functions by the Central Government. We, thus, are of the view tat not only recommendation made in paragraph No. 5(iv) but all the recommendations made in Paragraph No. 5 deserves to be set aside. In result, all recommendations as made in Paragraph No. 5 of the impugned judgment are set aside. Issue No.7 92. One of the submissions, which has been pressed by Shri Kapil Sibal is that even if the nominated members have right to vote in the proceeding of Assembly, they have no right to vote in two circumstances, i.e. budget and no confidence motion against the Government. Article 239A which provides for composition of Union Territory of Puducherry itself contemplated that the Parliament, may by law, create a body, (i) whether elected or; (ii) partly nominated and partly elected, to function as a Legislature for the Union Territory of Puducherry. Under Article 239, the Parliament has enacted the law, i.e., the Government of Union Territory Act, 1963, Section 3 of which provides that there shall be a Legislative Assembly for each Union territory. The total number of seats in the Legislative Assembly of the Union territory to be filled by persons chosen by direct election shall be thirty and the Central Government may nominate not more than three persons, to be members of the Legislative Assembly of the Union territory. Thus, the composition of Legislative Assembly itself consists of both persons chosen by direct election and persons nominated by the Central Government. Both elected and nominated persons are part of Legislative Assembly. The provisions of Act, 1963 refers to members of the Legislative Assembly. Section 11 provides that every member of the Legislative Assembly of the Union territory shall, before taking his seat, make and subscribe before the Administrator, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the First Schedule. The expression every member of the Legislative Assembly of the Union territory shall include both elected and nominated members. It is further clarified by First Schedule of the Act, 1963, which contains the forms of oaths and affirmations, which expressly refers both elected and nominated members. 93. Section 12 deals with the voting in the Assembly, which is as follows:- 12. Voting in Assembly, power of Assembly to act notwithstanding vacancies and quorum. (1) Save as otherwise provided in this Act, all questions at any sitting of the Legislative Assembly of the Union territory shall be determined by a majority of votes of the members present and voting other than the Speaker or person acting as such. (2) The Speaker or person acting as such shall not vote in the first instance but shall have and exercise a casting vote in the case of an equality of votes. (3) The Legislative Assembly of the Union territory shall have power to act notwithstanding any vacancy in the membership thereof, and any proceedings in the Legislative Assembly of the Union territory shall be valid notwithstanding that it is discovered subsequently that some person who was not entitled so to do, sat or voted or otherwise took part in the proceedings. (4) The quorum to constitute a meeting of the Legislative Assembly of the Union territory shall be one-third of the total number of members of the Assembly. (5) If at any time during a meeting of the Legislative Assembly of the Union territory there is no quorum, it shall be the duty of the Speaker, or person acting as such, either to adjourn the Assembly or to suspend the meeting until there is a quorum. 94. Section 12(1) provides that all questions at any sitting of the Legislative Assembly of the Union territory shall be determined by a majority of votes of the members present and voting other than the Speaker or person acting as such. When the expression used is votes of members present, obviously the members of the Assembly both elected and nominated person has to be counted, we cannot while interpreting Section 12(1) exclude the nominated members. Further Section 12(1) uses the expression all questions at any sitting of the Legislative Assembly, the expression all questions shall include all matters, which are to be decided in any sitting of the Legislative Assembly. The Statutory provision does not give indication that nominated members have no right to vote on budget and no confidence motion against the Government. To accept the submission of Shri Sibal shall be adding words to provision of Section 12, which are clear and express. Further, sub-section(1) provides that in the voting majority of the votes of the members present and voting, the speaker shall not be a person, who shall vote. When provision of sub-section(1) clearly provides no voting by Speaker, if intention of Legislature was to exclude the votes of nominated members, the said expression was bound to find included in the sub-section(1). The conclusion is inescapable that all members including the nominated members are entitled to vote in the sitting of the Legislative Assembly and the submission of Shri Sibal that nominated members cannot exercise vote in budget and no confidence motion has to be rejected. Other provisions like sub-section (4) of Section 12, which provides for quorum to constitute a meeting of the Legislative Assembly used the word one-third of the total number of members of the Assembly, members of the Assembly obviously will include both elected and nominated members. Thus, there is no basis for submission raised by Shri Sibal that nominated members cannot exercise their vote in budget and no confidence motion against the Government. The issue is answered accordingly.
### Response:
0
### Explanation:
are nothing but recommendations to the Parliament to frame legislation on various aspects as enumerated in the recommendation. We have, in the foregoing discussions, concluded that it is the Central Government, which is under Section 3(3) empowered to nominate members in the Legislative Assembly of Union Territory. The procedure and manner of taking decision by Central Government has already been regulated by Rules of Business framed by President in exercise of power under Article 77 of the Constitution of India. The Rules framed by President of India under Article 77(3) are applicable to all executive actions of the Central Government including Constitutional and Statutory functions.91. There being already Rules of Business for carrying out the functions by the Central Government as per Article 77(3) of the Constitution of India, we fail to see any justification for making recommendation in paragraph No. 5 of the impugned judgment. Furthermore, the power is to be exercised by Central Government and it is to be presumed that Central Government, in exercise of its power, shall be guided by objective and rational considerations. We, however, hasten to add that there is no inhibition in Central government or the Legislature to make Rules or a Statute for more convenient transaction of business regarding nominations. Recommendations to the Legislature and the high Constitution authorities are not made in a routine manner and we are of the view that High Court ought to have desisted for making any recommendations as contained in paragraph No. 5. The qualifications and disqualifications to become a member or continue to be a member of a Legislative Assembly have already been provided in the Act, 1963. The qualifications and disqualifications for members of Legislative Assembly are provided in the Act, 1963 and other relevant Statutes, which are always to be kept in mind, while exercising any Statutory functions by the Central Government. We, thus, are of the view tat not only recommendation made in paragraph No. 5(iv) but all the recommendations made in Paragraph No. 5 deserves to be set aside. In result, all recommendations as made in Paragraph No. 5 of the impugned judgment are set aside92. One of the submissions, which has been pressed by Shri Kapil Sibal is that even if the nominated members have right to vote in the proceeding of Assembly, they have no right to vote in two circumstances, i.e. budget and no confidence motion against the Government. Article 239A which provides for composition of Union Territory of Puducherry itself contemplated that the Parliament, may by law, create a body, (i) whether elected or; (ii) partly nominated and partly elected, to function as a Legislature for the Union Territory of Puducherry. Under Article 239, the Parliament has enacted the law, i.e., the Government of Union Territory Act, 1963, Section 3 of which provides that there shall be a Legislative Assembly for each Union territory. The total number of seats in the Legislative Assembly of the Union territory to be filled by persons chosen by direct election shall be thirty and the Central Government may nominate not more than three persons, to be members of the Legislative Assembly of the Union territory. Thus, the composition of Legislative Assembly itself consists of both persons chosen by direct election and persons nominated by the Central Government. Both elected and nominated persons are part of Legislative Assembly. The provisions of Act, 1963 refers to members of the Legislative Assembly. Section 11 provides that every member of the Legislative Assembly of the Union territory shall, before taking his seat, make and subscribe before the Administrator, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the First Schedule. The expression every member of the Legislative Assembly of the Union territory shall include both elected and nominated members. It is further clarified by First Schedule of the Act, 1963, which contains the forms of oaths and affirmations, which expressly refers both elected and nominated members94. Section 12(1) provides that all questions at any sitting of the Legislative Assembly of the Union territory shall be determined by a majority of votes of the members present and voting other than the Speaker or person acting as such. When the expression used is votes of members present, obviously the members of the Assembly both elected and nominated person has to be counted, we cannot while interpreting Section 12(1) exclude the nominated members. Further Section 12(1) uses the expression all questions at any sitting of the Legislative Assembly, the expression all questions shall include all matters, which are to be decided in any sitting of the Legislative Assembly. The Statutory provision does not give indication that nominated members have no right to vote on budget and no confidence motion against the Government. To accept the submission of Shri Sibal shall be adding words to provision of Section 12, which are clear and express. Further, sub-section(1) provides that in the voting majority of the votes of the members present and voting, the speaker shall not be a person, who shall vote. When provision of sub-section(1) clearly provides no voting by Speaker, if intention of Legislature was to exclude the votes of nominated members, the said expression was bound to find included in the sub-section(1). The conclusion is inescapable that all members including the nominated members are entitled to vote in the sitting of the Legislative Assembly and the submission of Shri Sibal that nominated members cannot exercise vote in budget and no confidence motion has to be rejected. Other provisions like sub-section (4) of Section 12, which provides for quorum to constitute a meeting of the Legislative Assembly used the word one-third of the total number of members of the Assembly, members of the Assembly obviously will include both elected and nominated members. Thus, there is no basis for submission raised by Shri Sibal that nominated members cannot exercise their vote in budget and no confidence motion against the Government. The issue is answered accordingly.
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Madan Lal Dhartipakar Vs. Neelam Sanjeeva Reddy and Others | SARKARIA, J. 1.This is a petition filed by Shri Madan Lal Dhartipakar on August 19, 1977 under the Presidential and Vice-Presidential Election Act, challenging the election of Shri Neelam Sanjeeva Reddy as President of India at the Presidential Election held on July 19. 1977. 2.The petitioner filed a nomination paper on July 5, 1977 but at nomination paper was rejected by the Returning Officer because as he admits-it was not subscribed by any elector as proposer or as seconder. He had thus admittedly not complied with the requirements of Section 5B(1) of the Act. The petitioner has, however, detailed reasons why he could not find any elector to propose or , second his nomination papers. 3.When the case came up before, us today, the petitioner requested that the hearing of the Petition be postponed till after the coming Summer Vacation. We explained to him that we did not see any sufficient reason to accede to his request. The adjournment was declined. 4.The petitioner then argued at length urging that the petition should be referred to a larger Bench for decision. We have fully heard and considered al l that he had to say in this connection, and we are not persuaded to accede to his request. 5. Since there was no compliance with the requirements of Section 5B(1) of the Act (No. 31 of 1952), the petitioner was not a duly nominated candidate wi thin the meaning of Section 13(a) of the Presidential and Vice Presidential Elections (Amendment) Act, 1977, and, as such, has no locus standi to maintain this petition; (vide Election Petition No. 1 of 1974 decided by this Court on October 14, 19 74). | 0[ds]Since there was no compliance with the requirements of Section 5B(1) of the Act (No. 31 of 1952), the petitioner was not a duly nominated candidate wi thin the meaning of Section 13(a) of the Presidential and Vice Presidential Elections (Amendment) Act, 1977, and, as such, has no locus standi to maintain this petition; (vide Election Petition No. 1 of 1974 decided by this Court on October 14, 19 74). | 0 | 323 | 96 | ### 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:
SARKARIA, J. 1.This is a petition filed by Shri Madan Lal Dhartipakar on August 19, 1977 under the Presidential and Vice-Presidential Election Act, challenging the election of Shri Neelam Sanjeeva Reddy as President of India at the Presidential Election held on July 19. 1977. 2.The petitioner filed a nomination paper on July 5, 1977 but at nomination paper was rejected by the Returning Officer because as he admits-it was not subscribed by any elector as proposer or as seconder. He had thus admittedly not complied with the requirements of Section 5B(1) of the Act. The petitioner has, however, detailed reasons why he could not find any elector to propose or , second his nomination papers. 3.When the case came up before, us today, the petitioner requested that the hearing of the Petition be postponed till after the coming Summer Vacation. We explained to him that we did not see any sufficient reason to accede to his request. The adjournment was declined. 4.The petitioner then argued at length urging that the petition should be referred to a larger Bench for decision. We have fully heard and considered al l that he had to say in this connection, and we are not persuaded to accede to his request. 5. Since there was no compliance with the requirements of Section 5B(1) of the Act (No. 31 of 1952), the petitioner was not a duly nominated candidate wi thin the meaning of Section 13(a) of the Presidential and Vice Presidential Elections (Amendment) Act, 1977, and, as such, has no locus standi to maintain this petition; (vide Election Petition No. 1 of 1974 decided by this Court on October 14, 19 74).
### Response:
0
### Explanation:
Since there was no compliance with the requirements of Section 5B(1) of the Act (No. 31 of 1952), the petitioner was not a duly nominated candidate wi thin the meaning of Section 13(a) of the Presidential and Vice Presidential Elections (Amendment) Act, 1977, and, as such, has no locus standi to maintain this petition; (vide Election Petition No. 1 of 1974 decided by this Court on October 14, 19 74).
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Urviben Chiragbhai Sheth Vs. Vijaybhai Shambhubhai Joranputra | on production of some material either, an affidavit of the claimant or the statement of the claimant before the MACT in support of such lowering down of claim. The MACT cannot accept the said representation on the mere oral statement of counsel since such settlement is purely a question of fact. In fact no leave was obtained from the Tribunal to enter into a compromise between the parties in respect of the settlement. 18. In the absence of all these materials, when an affidavit was filed by the learned advocate who appeared before the Tribunal, contending that no such settlement was ever entered into by the consent of parties, the High Court fell into an error by discarding the same only on the ground that this was filed belatedly before the High Court and is an afterthought. 19. It may be true that in the grounds of appeal before the High Court, this should have been mentioned, but on a mere defect of pleading of the parties, justice cannot be denied if in the facts of the case, the stand taken on the affidavit of the advocate appears probable. 10 20. To our mind, the stand taken in the affidavit of the advocate referred to above appears probable specially when there is nothing on record to show that the appellant ever filed any petition or affidavit for settlement or compromise before the MACT. 21. The reliance placed by the High Court on the judgment of this court in the case of Daman Singh (supra) is rather misconceived. In the said case, what this court held was when several points were raised in a writ petition before the High Court, and argument is confined to some grounds or points, as other grounds are considered by the counsel unworthy of canvassing, thereafter the counsel cannot make a grievance that other grounds were not considered by the court (see para 13). 22. The situation in this case is not similar to the one pointed out in Daman Singh (supra). 23. Here the High Court relied on the principle of sanctity of a record entered by a Court and held that what is recited in the Court record is sacrosanct. The High Court, in the process, fell into an error by equating the record of proceedings in a Tribunal with proceedings in a court of record. Under our hierarchy of Courts, a High Court (under Article 215) and the Supreme Court (under Article 129) are recognized as Courts of Record. A Motor Accidents Claims Tribunal constituted under the Motor Vehicles Act, 1988 is a Civil Court of limited jurisdiction, and is certainly not a Court of Record. The infallibility of its formal record is one of the earliest marks of a Court of Record, but it has developed other characteristics too (See A History of English Law by W.S. Holdsworth, Vol 5, p. 158). 24. In Reg v. Aaron Mellor, reported in (1858) 7 Coxs Criminal Law Cases 454, it was held "We must consider the statement of the learned judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity." 25. This has been followed by this Court in State of Maharashtra v. Ramdas Srinivas Nayak & Anr., reported in AIR 1982 SC 1249 . 26. Therefore, the principle of sanctity of recitals in Court proceedings is available to a Court of Record. This principle cannot be stretched to the proceedings of a tribunal. Unfortunately the High Court failed to appreciate this. 27. Now the question which arises is whether the matter should be remanded by this Court? Having regard to the materials on record, this Court is of the opinion that the matter should not be remanded, keeping in mind the period which has elapsed in between since the accident took place in 1990, and the fact that the appellant had been bedridden since then. 28. Admitted evidence about her medical disabilities is that she has 100% disability which is permanent in nature with no sign of recovery. 29. It is of course true that the appellants case that she was running a beauty parlour prior to the accident could not be proved, specially her income from the said parlour has not been proved. The existence of the beauty parlour is however not in dispute. 30. Assuming the appellant is not running the parlour, the fact remains that she has two children and her husband died prior to the incident. Therefore, the dependence of the children and the running of the family is to be shouldered by her even though she is infirm and bedridden. She also needs someone to help her in her daily life. She has to have recurring medical expenses. 31. Just because she is a homemaker is no reason why the courts should be miserly in fixing compensation for her. A Bench of this Court in Arun Kumar Agrarwal & Anr. v. National Insurance Co. Ltd. & Ors., reported in 2010 (9) SCC 218 , had occasion to consider this question and held that the work of homemakers and housewives should be properly assessed and in making assessment of compensation payable to them, they should not suffer from a gender bias.32. It is an accepted principle that compensation may be so assessed that the interest accruing therefrom will be sufficient for the maintenance of the family of the victim and the concept of compensation is wider than mere damages.33. Considering all this, we grant compensation of Rs.15 lacs (Rupees Fifteen Lacs) with interest at the rate of 8% on the enhanced compensation from the date of filing the claim petition before MACT till date of realization.34. Compensation on the aforesaid basis must be paid to the concerned MACT by the respondents within six weeks by a demand draft. Thereupon the MACT shall forthwith deposit the same in the bank account of the appellant. | 1[ds]10. This court finds that in the impugned judgment, the High Court has taken a rather narrow view of the entire controversy. In its rather cryptic judgment, the High Court refused to take into consideration the affidavit filed by Sri K.Z. Rifai, the learned advocate who appeared for the appellant before the MACT. The said affidavit is on record. A perusal of the said affidavit which was filed before the High Court shows that the advocate who appeared on behalf of the appellant before theThe High Court ignored the said stand taken before it on the ground that such an affidavit being placed before the High Court was an afterthought and no ground had been taken in the memorandum of appeal dated 21.6.2001 to that effect.12. The other ground which weighed with the High Court is that statement recorded in the judgment of the Court cannot be contradicted by any affidavit or any other evidence and in coming to said conclusion the High Court relied on the judgment of this Court in Daman Singh and others etc. v. State of Punjab and others, reported in AIR 1985 SC 973 .13. This Court fails to appreciate the aforesaid stand of the High Court for various reasons which are discussed hereunder.14. From a perusal of the judgment of the Tribunal, it does not appear that it was based solely on the consent of the parties. Apart from consent, if any, of the parties, the MACT also held that the amount of compensation awarded by it "appears to be proper, just and reasonable taking into consideration the aforesaid evidence.Therefore, it appears to be a mixed bag. MACT curiously held that in the facts of the case, the amount granted by it is just proper and reasonable and also held that the same is based on the consent of the parties. The High Court, as the last court of fact and law should have examined whether the Tribunals finding that the compensation granted is proper, just and reasonable in the facts of the case. The High Court has admittedly failed to do so.17. Coming to the question of so-called consent of the parties, the approach of the High Court also cannot be appreciated. It is true that while acting as a Claims Tribunal, its proceedings are summary in nature but in exercising its summary jurisdiction the Tribunal must follow principles of justice, equity and good conscience and must be aware that its summary enquiry is in connection with a legislation which is meant for social welfare. Therefore, when a representation is made before the Tribunal that a claim of Rs.15 lacs by way of consent is reduced to Rs.6 lacs and odd, the Tribunal must insist on production of some material either, an affidavit of the claimant or the statement of the claimant before the MACT in support of such lowering down of claim. The MACT cannot accept the said representation on the mere oral statement of counsel since such settlement is purely a question of fact. In fact no leave was obtained from the Tribunal to enter into a compromise between the parties in respect of the settlement.Just because she is a homemaker is no reason why the courts should be miserly in fixing compensation for her. A Bench of this Court in Arun Kumar Agrarwal & Anr. v. National Insurance Co. Ltd. & Ors., reported in 2010 (9) SCC 218 , had occasion to consider this question and held that the work of homemakers and housewives should be properly assessed and in making assessment of compensation payable to them, they should not suffer from a gender bias.32. It is an accepted principle that compensation may be so assessed that the interest accruing therefrom will be sufficient for the maintenance of the family of the victim and the concept of compensation is wider than mere damages.33. Considering all this, we grant compensation of Rs.15 lacs (Rupees Fifteen Lacs) with interest at the rate of 8% on the enhanced compensation from the date of filing the claim petition before MACT till date of realization.34. Compensation on the aforesaid basis must be paid to the concerned MACT by the respondents within six weeks by a demand draft. Thereupon the MACT shall forthwith deposit the same in the bank account of the appellant. | 1 | 2,545 | 777 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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on production of some material either, an affidavit of the claimant or the statement of the claimant before the MACT in support of such lowering down of claim. The MACT cannot accept the said representation on the mere oral statement of counsel since such settlement is purely a question of fact. In fact no leave was obtained from the Tribunal to enter into a compromise between the parties in respect of the settlement. 18. In the absence of all these materials, when an affidavit was filed by the learned advocate who appeared before the Tribunal, contending that no such settlement was ever entered into by the consent of parties, the High Court fell into an error by discarding the same only on the ground that this was filed belatedly before the High Court and is an afterthought. 19. It may be true that in the grounds of appeal before the High Court, this should have been mentioned, but on a mere defect of pleading of the parties, justice cannot be denied if in the facts of the case, the stand taken on the affidavit of the advocate appears probable. 10 20. To our mind, the stand taken in the affidavit of the advocate referred to above appears probable specially when there is nothing on record to show that the appellant ever filed any petition or affidavit for settlement or compromise before the MACT. 21. The reliance placed by the High Court on the judgment of this court in the case of Daman Singh (supra) is rather misconceived. In the said case, what this court held was when several points were raised in a writ petition before the High Court, and argument is confined to some grounds or points, as other grounds are considered by the counsel unworthy of canvassing, thereafter the counsel cannot make a grievance that other grounds were not considered by the court (see para 13). 22. The situation in this case is not similar to the one pointed out in Daman Singh (supra). 23. Here the High Court relied on the principle of sanctity of a record entered by a Court and held that what is recited in the Court record is sacrosanct. The High Court, in the process, fell into an error by equating the record of proceedings in a Tribunal with proceedings in a court of record. Under our hierarchy of Courts, a High Court (under Article 215) and the Supreme Court (under Article 129) are recognized as Courts of Record. A Motor Accidents Claims Tribunal constituted under the Motor Vehicles Act, 1988 is a Civil Court of limited jurisdiction, and is certainly not a Court of Record. The infallibility of its formal record is one of the earliest marks of a Court of Record, but it has developed other characteristics too (See A History of English Law by W.S. Holdsworth, Vol 5, p. 158). 24. In Reg v. Aaron Mellor, reported in (1858) 7 Coxs Criminal Law Cases 454, it was held "We must consider the statement of the learned judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity." 25. This has been followed by this Court in State of Maharashtra v. Ramdas Srinivas Nayak & Anr., reported in AIR 1982 SC 1249 . 26. Therefore, the principle of sanctity of recitals in Court proceedings is available to a Court of Record. This principle cannot be stretched to the proceedings of a tribunal. Unfortunately the High Court failed to appreciate this. 27. Now the question which arises is whether the matter should be remanded by this Court? Having regard to the materials on record, this Court is of the opinion that the matter should not be remanded, keeping in mind the period which has elapsed in between since the accident took place in 1990, and the fact that the appellant had been bedridden since then. 28. Admitted evidence about her medical disabilities is that she has 100% disability which is permanent in nature with no sign of recovery. 29. It is of course true that the appellants case that she was running a beauty parlour prior to the accident could not be proved, specially her income from the said parlour has not been proved. The existence of the beauty parlour is however not in dispute. 30. Assuming the appellant is not running the parlour, the fact remains that she has two children and her husband died prior to the incident. Therefore, the dependence of the children and the running of the family is to be shouldered by her even though she is infirm and bedridden. She also needs someone to help her in her daily life. She has to have recurring medical expenses. 31. Just because she is a homemaker is no reason why the courts should be miserly in fixing compensation for her. A Bench of this Court in Arun Kumar Agrarwal & Anr. v. National Insurance Co. Ltd. & Ors., reported in 2010 (9) SCC 218 , had occasion to consider this question and held that the work of homemakers and housewives should be properly assessed and in making assessment of compensation payable to them, they should not suffer from a gender bias.32. It is an accepted principle that compensation may be so assessed that the interest accruing therefrom will be sufficient for the maintenance of the family of the victim and the concept of compensation is wider than mere damages.33. Considering all this, we grant compensation of Rs.15 lacs (Rupees Fifteen Lacs) with interest at the rate of 8% on the enhanced compensation from the date of filing the claim petition before MACT till date of realization.34. Compensation on the aforesaid basis must be paid to the concerned MACT by the respondents within six weeks by a demand draft. Thereupon the MACT shall forthwith deposit the same in the bank account of the appellant.
### Response:
1
### Explanation:
10. This court finds that in the impugned judgment, the High Court has taken a rather narrow view of the entire controversy. In its rather cryptic judgment, the High Court refused to take into consideration the affidavit filed by Sri K.Z. Rifai, the learned advocate who appeared for the appellant before the MACT. The said affidavit is on record. A perusal of the said affidavit which was filed before the High Court shows that the advocate who appeared on behalf of the appellant before theThe High Court ignored the said stand taken before it on the ground that such an affidavit being placed before the High Court was an afterthought and no ground had been taken in the memorandum of appeal dated 21.6.2001 to that effect.12. The other ground which weighed with the High Court is that statement recorded in the judgment of the Court cannot be contradicted by any affidavit or any other evidence and in coming to said conclusion the High Court relied on the judgment of this Court in Daman Singh and others etc. v. State of Punjab and others, reported in AIR 1985 SC 973 .13. This Court fails to appreciate the aforesaid stand of the High Court for various reasons which are discussed hereunder.14. From a perusal of the judgment of the Tribunal, it does not appear that it was based solely on the consent of the parties. Apart from consent, if any, of the parties, the MACT also held that the amount of compensation awarded by it "appears to be proper, just and reasonable taking into consideration the aforesaid evidence.Therefore, it appears to be a mixed bag. MACT curiously held that in the facts of the case, the amount granted by it is just proper and reasonable and also held that the same is based on the consent of the parties. The High Court, as the last court of fact and law should have examined whether the Tribunals finding that the compensation granted is proper, just and reasonable in the facts of the case. The High Court has admittedly failed to do so.17. Coming to the question of so-called consent of the parties, the approach of the High Court also cannot be appreciated. It is true that while acting as a Claims Tribunal, its proceedings are summary in nature but in exercising its summary jurisdiction the Tribunal must follow principles of justice, equity and good conscience and must be aware that its summary enquiry is in connection with a legislation which is meant for social welfare. Therefore, when a representation is made before the Tribunal that a claim of Rs.15 lacs by way of consent is reduced to Rs.6 lacs and odd, the Tribunal must insist on production of some material either, an affidavit of the claimant or the statement of the claimant before the MACT in support of such lowering down of claim. The MACT cannot accept the said representation on the mere oral statement of counsel since such settlement is purely a question of fact. In fact no leave was obtained from the Tribunal to enter into a compromise between the parties in respect of the settlement.Just because she is a homemaker is no reason why the courts should be miserly in fixing compensation for her. A Bench of this Court in Arun Kumar Agrarwal & Anr. v. National Insurance Co. Ltd. & Ors., reported in 2010 (9) SCC 218 , had occasion to consider this question and held that the work of homemakers and housewives should be properly assessed and in making assessment of compensation payable to them, they should not suffer from a gender bias.32. It is an accepted principle that compensation may be so assessed that the interest accruing therefrom will be sufficient for the maintenance of the family of the victim and the concept of compensation is wider than mere damages.33. Considering all this, we grant compensation of Rs.15 lacs (Rupees Fifteen Lacs) with interest at the rate of 8% on the enhanced compensation from the date of filing the claim petition before MACT till date of realization.34. Compensation on the aforesaid basis must be paid to the concerned MACT by the respondents within six weeks by a demand draft. Thereupon the MACT shall forthwith deposit the same in the bank account of the appellant.
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Mohan Mahto Vs. M/S Central Coal Field Ltd. | There is no dispute whatsoever that the appellant-Bank is required to consider the request for compassionate appointment only in accordance with the scheme framed by it and no discretion as such left with any of the authorities to make compassionate appointment de hors the scheme. In our considered opinion the claim for compassionate appointment and the right, if any, is traceable only to the scheme, executive instructions, rules etc. framed by the employer in the matter of providing employment on compassionate grounds. There is no right of whatsoever nature to claim compassionate appointment on any ground other than the one, if any, conferred by the employer by way of scheme or instructions as the case may be. 14. The period of six months limitation prescribed in the circular letter dated 12.12.1995 was not statutory. It is also not imperative in character. Even for entertaining such an application beyond the period of six months, the Headquarters of the Central Coal Field Limited is entitled to consider the facts and circumstances of each case. Admittedly, Appellant filed an application for grant of appointment on compassionate ground when he was a minor. His application was rejected on that premise at the first instance but even at that point of time the respondent did not take a stand that the same had not been entertained on the ground that the same was filed after expiry of the period of six months. 15. It is neither in doubt nor in dispute that the case for grant of compassionate appointment of a minor was required to be considered in terms of Sub-clause (iii) of Clause 9.5.0 of the N.C.W.A.V. In terms of the said provision, the name of the appellant was to be kept on a live roster. He was to remain on the live roster till he attained the age of 18 years. Respondents did not perform their duties cast on them thereunder. It took an unilateral stand that an application has been filed in the year 1999 in the prescribed form. For complying with the provisions of a settlement which is binding on the parties, bona fide or otherwise of the respondent must be judged from the fact as to whether it had discharged his duties thereunder or not. In this case, not only it failed and/ or neglected to do so, but as indicated hereinbefore it took an unholy stand that the elder brother of the appellant being employed, he was not entitled to appointment on the compassionate ground. Thus, what really impelled the respondent in denying the benefit of compassionate appointment to the appellant is, therefore, open to guess. We expect a public sector undertaking which is a State within the meaning of Article 12 of the Constitution of India not only to act fairly but also reasonably and bona fide. In this case, we are satisfied that the action of the respondent is neither fair nor reasonable nor bona fide. 16. We have indicated hereinbefore, that it is not necessary for us to go into the question as to whether on the teeth of the provision of N.C.W.A.V., the respondent at all had any power to fix a time limit and thereby curtailing the right of the workman concerned. We would assume that even in such a matter, it had a right. But, even for the said purpose, keeping in view the fact that a beneficial provision is made under a settlement, the State was expected to act reasonably. While so acting, it must provide for a period of limitation which is reasonable. Apart from the fact that the period of limitation provided for in the circular letter with a power of relaxation can never be held to be imperative in character, the matter should also be considered from the subsequent conduct of the respondent insofar as it had issued another circular letter in the year 2000 providing for filing of an application for appointment on compassionate ground within a period of one year. It may be that the said circular letter has prospective operation but even in relation thereto we may notice that whereas the said circular letter was issued upon holding discussion with the Unions, the circular letter of the year 1995 was an unilateral one. Furthermore, in its letter dated 2/3.08.2000, it will bear repetition to state, expiry of the period of limitation was not taken as a ground for rejecting his application. Under-age and non-placement of his name in live roster are stated to be the reasons. It is, therefore, unfair on the part of the respondent to raise such a plea for the first time in its counter-affidavit to the writ petition. If he was under-age, definitely, it was obligatory on the part of the respondent to keep his name in the live roster. It was not done. 17. Reliance placed by the High Court on K.R. Vishwanath (supra), with respect, is misplaced. Therein, the terms and conditions of the parties were governed by a statute known as Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996. Rule 5 of the said Rules provided for a period of limitation. The said decision, therefore, cannot be said to have any application whatsoever in the instant case. 18. In Umesh Kumar Nagpal v. State of Haryana and Others [(1994) 4 SCC 138] whereupon reliance has been placed by Dr. Singhvi, this Court held: 6. For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over. What should be a reasonable period would depend upon the rules operating in the field. 19. | 1[ds]We have indicated hereinbefore, that it is not necessary for us to go into the question as to whether on the teeth of the provision of N.C.W.A.V., the respondent at all had any power to fix a time limit and thereby curtailing the right of the workman concerned. We would assume that even in such a matter, it had a right. But, even for the said purpose, keeping in view the fact that a beneficial provision is made under a settlement, the State was expected to act reasonably. While so acting, it must provide for a period of limitation which is reasonable. Apart from the fact that the period of limitation provided for in the circular letter with a power of relaxation can never be held to be imperative in character, the matter should also be considered from the subsequent conduct of the respondent insofar as it had issued another circular letter in the year 2000 providing for filing of an application for appointment on compassionate ground within a period of one year. It may be that the said circular letter has prospective operation but even in relation thereto we may notice that whereas the said circular letter was issued upon holding discussion with the Unions, the circular letter of the year 1995 was an unilateral one. Furthermore, in its letter dated 2/3.08.2000, it will bear repetition to state, expiry of the period of limitation was not taken as a ground for rejecting his application. Under-age and non-placement of his name in live roster are stated to be the reasons. It is, therefore, unfair on the part of the respondent to raise such a plea for the first time in its counter-affidavit to the writ petition. If he was under-age, definitely, it was obligatory on the part of the respondent to keep his name in the live roster. It was not doneReliance placed by the High Court on K.R. Vishwanath (supra), with respect, is misplaced. Therein, the terms and conditions of the parties were governed by a statute known as Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996. Rule 5 of the said Rules provided for a period of limitation. The said decision, therefore, cannot be said to have any application whatsoever in the instant caseIn Umesh Kumar Nagpal v. State of Haryana and Others [(1994) 4 SCC 138] whereupon reliance has been placed by Dr. Singhvi, this Court held:6. For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is overWhat should be a reasonable period would depend upon the rules operating in the field | 1 | 3,333 | 560 | ### 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:
There is no dispute whatsoever that the appellant-Bank is required to consider the request for compassionate appointment only in accordance with the scheme framed by it and no discretion as such left with any of the authorities to make compassionate appointment de hors the scheme. In our considered opinion the claim for compassionate appointment and the right, if any, is traceable only to the scheme, executive instructions, rules etc. framed by the employer in the matter of providing employment on compassionate grounds. There is no right of whatsoever nature to claim compassionate appointment on any ground other than the one, if any, conferred by the employer by way of scheme or instructions as the case may be. 14. The period of six months limitation prescribed in the circular letter dated 12.12.1995 was not statutory. It is also not imperative in character. Even for entertaining such an application beyond the period of six months, the Headquarters of the Central Coal Field Limited is entitled to consider the facts and circumstances of each case. Admittedly, Appellant filed an application for grant of appointment on compassionate ground when he was a minor. His application was rejected on that premise at the first instance but even at that point of time the respondent did not take a stand that the same had not been entertained on the ground that the same was filed after expiry of the period of six months. 15. It is neither in doubt nor in dispute that the case for grant of compassionate appointment of a minor was required to be considered in terms of Sub-clause (iii) of Clause 9.5.0 of the N.C.W.A.V. In terms of the said provision, the name of the appellant was to be kept on a live roster. He was to remain on the live roster till he attained the age of 18 years. Respondents did not perform their duties cast on them thereunder. It took an unilateral stand that an application has been filed in the year 1999 in the prescribed form. For complying with the provisions of a settlement which is binding on the parties, bona fide or otherwise of the respondent must be judged from the fact as to whether it had discharged his duties thereunder or not. In this case, not only it failed and/ or neglected to do so, but as indicated hereinbefore it took an unholy stand that the elder brother of the appellant being employed, he was not entitled to appointment on the compassionate ground. Thus, what really impelled the respondent in denying the benefit of compassionate appointment to the appellant is, therefore, open to guess. We expect a public sector undertaking which is a State within the meaning of Article 12 of the Constitution of India not only to act fairly but also reasonably and bona fide. In this case, we are satisfied that the action of the respondent is neither fair nor reasonable nor bona fide. 16. We have indicated hereinbefore, that it is not necessary for us to go into the question as to whether on the teeth of the provision of N.C.W.A.V., the respondent at all had any power to fix a time limit and thereby curtailing the right of the workman concerned. We would assume that even in such a matter, it had a right. But, even for the said purpose, keeping in view the fact that a beneficial provision is made under a settlement, the State was expected to act reasonably. While so acting, it must provide for a period of limitation which is reasonable. Apart from the fact that the period of limitation provided for in the circular letter with a power of relaxation can never be held to be imperative in character, the matter should also be considered from the subsequent conduct of the respondent insofar as it had issued another circular letter in the year 2000 providing for filing of an application for appointment on compassionate ground within a period of one year. It may be that the said circular letter has prospective operation but even in relation thereto we may notice that whereas the said circular letter was issued upon holding discussion with the Unions, the circular letter of the year 1995 was an unilateral one. Furthermore, in its letter dated 2/3.08.2000, it will bear repetition to state, expiry of the period of limitation was not taken as a ground for rejecting his application. Under-age and non-placement of his name in live roster are stated to be the reasons. It is, therefore, unfair on the part of the respondent to raise such a plea for the first time in its counter-affidavit to the writ petition. If he was under-age, definitely, it was obligatory on the part of the respondent to keep his name in the live roster. It was not done. 17. Reliance placed by the High Court on K.R. Vishwanath (supra), with respect, is misplaced. Therein, the terms and conditions of the parties were governed by a statute known as Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996. Rule 5 of the said Rules provided for a period of limitation. The said decision, therefore, cannot be said to have any application whatsoever in the instant case. 18. In Umesh Kumar Nagpal v. State of Haryana and Others [(1994) 4 SCC 138] whereupon reliance has been placed by Dr. Singhvi, this Court held: 6. For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over. What should be a reasonable period would depend upon the rules operating in the field. 19.
### Response:
1
### Explanation:
We have indicated hereinbefore, that it is not necessary for us to go into the question as to whether on the teeth of the provision of N.C.W.A.V., the respondent at all had any power to fix a time limit and thereby curtailing the right of the workman concerned. We would assume that even in such a matter, it had a right. But, even for the said purpose, keeping in view the fact that a beneficial provision is made under a settlement, the State was expected to act reasonably. While so acting, it must provide for a period of limitation which is reasonable. Apart from the fact that the period of limitation provided for in the circular letter with a power of relaxation can never be held to be imperative in character, the matter should also be considered from the subsequent conduct of the respondent insofar as it had issued another circular letter in the year 2000 providing for filing of an application for appointment on compassionate ground within a period of one year. It may be that the said circular letter has prospective operation but even in relation thereto we may notice that whereas the said circular letter was issued upon holding discussion with the Unions, the circular letter of the year 1995 was an unilateral one. Furthermore, in its letter dated 2/3.08.2000, it will bear repetition to state, expiry of the period of limitation was not taken as a ground for rejecting his application. Under-age and non-placement of his name in live roster are stated to be the reasons. It is, therefore, unfair on the part of the respondent to raise such a plea for the first time in its counter-affidavit to the writ petition. If he was under-age, definitely, it was obligatory on the part of the respondent to keep his name in the live roster. It was not doneReliance placed by the High Court on K.R. Vishwanath (supra), with respect, is misplaced. Therein, the terms and conditions of the parties were governed by a statute known as Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996. Rule 5 of the said Rules provided for a period of limitation. The said decision, therefore, cannot be said to have any application whatsoever in the instant caseIn Umesh Kumar Nagpal v. State of Haryana and Others [(1994) 4 SCC 138] whereupon reliance has been placed by Dr. Singhvi, this Court held:6. For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is overWhat should be a reasonable period would depend upon the rules operating in the field
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Ram Chandra Singh Vs. Savitri Devi | justice on the face of appellant for all time to come. We, therefore, are of the opinion that the impugned judgment dated 10.12.1998 cannot be sustained.36. So far as the order dated 10.5.1999 passed in Civil Review No. 245/1998 is concerned, suffice it to say that the High Court should have considered the question as to whether the right of the auction purchaser could have been set at naught by reason of a consent order passed in his absence. The appellant was not a party in the First Appeal. He was also not a party to the compromise.37. The consent order, as is well-known, is an agreement between the parties with the seal of the Court superadded to it. The appellant herein in the Review Application categorically stated that the parties to the appeal had suppressed the auction sale as also the confirmation thereof. The effect of the events appearing subsequent to the filing of First Appeal resulting in creation of a third party right was bound to be taken into consideration by the High Court. A third party right cannot be set at naught by consent. The High Court, therefore was required to consider the contention of the appellant in their proper perspective. The High Court, in our opinion, was obligated to address itself on these questions for the purpose of reviewing its order.38. In Dwarka Prasad Agarwal (D) By Lrs. and Another vs. B.D. Agarwal and Others [ 2003 (6) SCC 230 ], it was observed: "Several issues of grave importance were required to be addressed by the High Court. The High Court sought to take a short cut in holding that the said compromise was not binding upon Dwarka Prasad Agarwal and thereby no writ was issued. The consequence of recording of the said compromise was tell-tale. Not only pursuant thereto or in furtherance thereof the Registrar of Newspapers, New Delhi, passed an order dated 3.9.1992; it was construed to be a judgment of the High Court which had been taken aid of by the respondents herein for the purpose of withdrawal of suits wherein various disputed questions of facts and law including the genuineness or otherwise of the agreements were n question and required adjudication. The High Court was also required to address itself, more so while disposing of the review application, as to whether the purported settlement on the grounds raised by the appellants herein, was a lawful one. Without any application of mind, the High Court proceeded to hold that the agreement was lawful. It did not pose unto itself the right question so as to enable himself to arrive at a finding of fact resulting in correct answer thereto and, thus, the same would amount to a misdirection in law." 39. It was further observed: "It is now well-settled that an order passed by a court without jurisdiction is a nullity. Any order passed or action taken pursuant thereto or in furtherance thereof would also be nullities. In the instant case, as the High Court did not have any jurisdiction to record the compromise for the reasons stated hereinbefore and in particular as no writ was required to be issued having regard to the fact that public law remedy could not have been resorted to, the impugned orders must be held to be illegal and without jurisdiction and are liable to be set aside. All orders and actions taken pursuant to or in furtherance thereof must also be declared wholly illegal and without jurisdiction and consequently are liable to be set aside. They are declared as such." 40. It will bear repetition to state that any order obtained by practising fraud on court is also non-est in the eyes of law.41. It is true that pursuant to or in furtherance of the consent order, the respondents had deposited the amount and the State Government has appropriated the same. The legal issues as regard the effect of commission of fraud on court vis-a-vis the conduct of the parties are still at large. The High Court was, therefore, required to adjust the equities between the parties. The Bank cannot also unjustly enrich itself insofar as; while enforcing a preliminary decree of mortgage, it cannot take also recourse to recover the decretal amount from the judgment-debtors at the expense of the auction purchaser.42. In such an event also, the Court may have to find out a remedy which would be just and equitable.43. The High Court furthermore failed to notice the principle actus curiae neminem gravabit.44. In Rajesh D. Darbar & Others vs. Narasingrao Krishnaji Kulkarni & Ors. 2003 (7) JT 209 ], this Court noticed: "The courts can take notice of the subsequent events and can mould the relief accordingly. But there is a rider to these well established principles. This can be done only in exceptional circumstances, some of which have been highlighted above. This equitable principles cannot, however, stand on the way of the court adjudicating the rights already vested by a statute. This well settled position need not detain us, when the second point urged by the appellants is focused. There can be no quarrel with the proposition as noted by the High Court that a party cannot be made to suffer on account of an act of the Court. There is a well recognised maxim of equity, namely, actus curiae neminem gravabit which means an act of the Court shall prejudice no man. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia, i.e. the law does not compel a man to do that what he cannot possibly perform. The applicability of the abovesaid maxims has been approved by this Court in Raj Kumar Dey and ors. vs. Tarapada Dey and Ors. 1987 (4) SCC 398 , Gursharan Singh vs. New Delhi Municipal Committees 1996 (2) SCC 459 and Mohammed Gazi vs. State of M.P. and Ors. 2000 (4) SCC 342." | 1[ds]35. Once it is held that a judgment and decree has been obtained by practising fraud on the court it is trite that the principles of resjudicata shall not apply. The High Court, therefore, in our opinion committed a serious error in referring to the earlier orders passed by it so as to shut the doors of justice on the face of appellant for all time to come. We, therefore, are of the opinion that the impugned judgment dated 10.12.1998 cannot be sustained.36. So far as the order dated 10.5.1999 passed in Civil Review No. 245/1998 is concerned, suffice it to say that the High Court should have considered the question as to whether the right of the auction purchaser could have been set at naught by reason of a consent order passed in his absence. The appellant was not a party in the First Appeal. He was also not a party to the compromise.37. The consent order, as isis an agreement between the parties with the seal of the Court superadded to it. The appellant herein in the Review Application categorically stated that the parties to the appeal had suppressed the auction sale as also the confirmation thereof. The effect of the events appearing subsequent to the filing of First Appeal resulting in creation of a third party right was bound to be taken into consideration by the High Court. A third party right cannot be set at naught by consent. The High Court, therefore was required to consider the contention of the appellant in their proper perspective. The High Court, in our opinion, was obligated to address itself on these questions for the purpose of reviewing its order.38. In Dwarka Prasad Agarwal (D) By Lrs. and Another vs. B.D. Agarwal and Others [ 2003 (6) SCC 230 ], it wasissues of grave importance were required to be addressed by the High Court. The High Court sought to take a short cut in holding that the said compromise was not binding upon Dwarka Prasad Agarwal and thereby no writ was issued. The consequence of recording of the said compromise wasNot only pursuant thereto or in furtherance thereof the Registrar of Newspapers, New Delhi, passed an order dated 3.9.1992; it was construed to be a judgment of the High Court which had been taken aid of by the respondents herein for the purpose of withdrawal of suits wherein various disputed questions of facts and law including the genuineness or otherwise of the agreements were n question and required adjudication. The High Court was also required to address itself, more so while disposing of the review application, as to whether the purported settlement on the grounds raised by the appellants herein, was a lawful one. Without any application of mind, the High Court proceeded to hold that the agreement was lawful. It did not pose unto itself the right question so as to enable himself to arrive at a finding of fact resulting in correct answer thereto and, thus, the same would amount to a misdirection in law.It was furtherled that an order passed by a court without jurisdiction is a nullity. Any order passed or action taken pursuant thereto or in furtherance thereof would also be nullities. In the instant case, as the High Court did not have any jurisdiction to record the compromise for the reasons stated hereinbefore and in particular as no writ was required to be issued having regard to the fact that public law remedy could not have been resorted to, the impugned orders must be held to be illegal and without jurisdiction and are liable to be set aside. All orders and actions taken pursuant to or in furtherance thereof must also be declared wholly illegal and without jurisdiction and consequently are liable to be set aside. They are declared as such.It will bear repetition to state that any order obtained by practising fraud on court is alsoin the eyes of law.41. It is true that pursuant to or in furtherance of the consent order, the respondents had deposited the amount and the State Government has appropriated the same. The legal issues as regard the effect of commission of fraud on courtthe conduct of the parties are still at large. The High Court was, therefore, required to adjust the equities between the parties. The Bank cannot also unjustly enrich itself insofar as; while enforcing a preliminary decree of mortgage, it cannot take also recourse to recover the decretal amount from theat the expense of the auction purchaser.42. In such an event also, the Court may have to find out a remedy which would be just and equitable.43. The High Court furthermore failed to notice the principle actus curiae neminem gravabit.44. In Rajesh D. Darbar & Others vs. Narasingrao Krishnaji Kulkarni & Ors. 2003 (7) JT 209 ], this Courtcourts can take notice of the subsequent events and can mould the relief accordingly. But there is a rider to these well established principles. This can be done only in exceptional circumstances, some of which have been highlighted above. This equitable principles cannot, however, stand on the way of the court adjudicating the rights already vested by a statute. This well settled position need not detain us, when the second point urged by the appellants is focused. There can be no quarrel with the proposition as noted by the High Court that a party cannot be made to suffer on account of an act of the Court. There is a well recognised maxim of equity, namely, actus curiae neminem gravabit which means an act of the Court shall prejudice no man. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia, i.e. the law does not compel a man to do that what he cannot possibly perform. The applicability of the abovesaid maxims has been approved by this Court in Raj Kumar Dey and ors. vs. Tarapada Dey and Ors. 1987 (4) SCC 398 , Gursharan Singh vs. New Delhi Municipal Committees 1996 (2) SCC 459 and Mohammed Gazi vs. State of M.P. and Ors. 2000 (4) SCC 342." | 1 | 5,257 | 1,140 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
justice on the face of appellant for all time to come. We, therefore, are of the opinion that the impugned judgment dated 10.12.1998 cannot be sustained.36. So far as the order dated 10.5.1999 passed in Civil Review No. 245/1998 is concerned, suffice it to say that the High Court should have considered the question as to whether the right of the auction purchaser could have been set at naught by reason of a consent order passed in his absence. The appellant was not a party in the First Appeal. He was also not a party to the compromise.37. The consent order, as is well-known, is an agreement between the parties with the seal of the Court superadded to it. The appellant herein in the Review Application categorically stated that the parties to the appeal had suppressed the auction sale as also the confirmation thereof. The effect of the events appearing subsequent to the filing of First Appeal resulting in creation of a third party right was bound to be taken into consideration by the High Court. A third party right cannot be set at naught by consent. The High Court, therefore was required to consider the contention of the appellant in their proper perspective. The High Court, in our opinion, was obligated to address itself on these questions for the purpose of reviewing its order.38. In Dwarka Prasad Agarwal (D) By Lrs. and Another vs. B.D. Agarwal and Others [ 2003 (6) SCC 230 ], it was observed: "Several issues of grave importance were required to be addressed by the High Court. The High Court sought to take a short cut in holding that the said compromise was not binding upon Dwarka Prasad Agarwal and thereby no writ was issued. The consequence of recording of the said compromise was tell-tale. Not only pursuant thereto or in furtherance thereof the Registrar of Newspapers, New Delhi, passed an order dated 3.9.1992; it was construed to be a judgment of the High Court which had been taken aid of by the respondents herein for the purpose of withdrawal of suits wherein various disputed questions of facts and law including the genuineness or otherwise of the agreements were n question and required adjudication. The High Court was also required to address itself, more so while disposing of the review application, as to whether the purported settlement on the grounds raised by the appellants herein, was a lawful one. Without any application of mind, the High Court proceeded to hold that the agreement was lawful. It did not pose unto itself the right question so as to enable himself to arrive at a finding of fact resulting in correct answer thereto and, thus, the same would amount to a misdirection in law." 39. It was further observed: "It is now well-settled that an order passed by a court without jurisdiction is a nullity. Any order passed or action taken pursuant thereto or in furtherance thereof would also be nullities. In the instant case, as the High Court did not have any jurisdiction to record the compromise for the reasons stated hereinbefore and in particular as no writ was required to be issued having regard to the fact that public law remedy could not have been resorted to, the impugned orders must be held to be illegal and without jurisdiction and are liable to be set aside. All orders and actions taken pursuant to or in furtherance thereof must also be declared wholly illegal and without jurisdiction and consequently are liable to be set aside. They are declared as such." 40. It will bear repetition to state that any order obtained by practising fraud on court is also non-est in the eyes of law.41. It is true that pursuant to or in furtherance of the consent order, the respondents had deposited the amount and the State Government has appropriated the same. The legal issues as regard the effect of commission of fraud on court vis-a-vis the conduct of the parties are still at large. The High Court was, therefore, required to adjust the equities between the parties. The Bank cannot also unjustly enrich itself insofar as; while enforcing a preliminary decree of mortgage, it cannot take also recourse to recover the decretal amount from the judgment-debtors at the expense of the auction purchaser.42. In such an event also, the Court may have to find out a remedy which would be just and equitable.43. The High Court furthermore failed to notice the principle actus curiae neminem gravabit.44. In Rajesh D. Darbar & Others vs. Narasingrao Krishnaji Kulkarni & Ors. 2003 (7) JT 209 ], this Court noticed: "The courts can take notice of the subsequent events and can mould the relief accordingly. But there is a rider to these well established principles. This can be done only in exceptional circumstances, some of which have been highlighted above. This equitable principles cannot, however, stand on the way of the court adjudicating the rights already vested by a statute. This well settled position need not detain us, when the second point urged by the appellants is focused. There can be no quarrel with the proposition as noted by the High Court that a party cannot be made to suffer on account of an act of the Court. There is a well recognised maxim of equity, namely, actus curiae neminem gravabit which means an act of the Court shall prejudice no man. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia, i.e. the law does not compel a man to do that what he cannot possibly perform. The applicability of the abovesaid maxims has been approved by this Court in Raj Kumar Dey and ors. vs. Tarapada Dey and Ors. 1987 (4) SCC 398 , Gursharan Singh vs. New Delhi Municipal Committees 1996 (2) SCC 459 and Mohammed Gazi vs. State of M.P. and Ors. 2000 (4) SCC 342."
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therefore, in our opinion committed a serious error in referring to the earlier orders passed by it so as to shut the doors of justice on the face of appellant for all time to come. We, therefore, are of the opinion that the impugned judgment dated 10.12.1998 cannot be sustained.36. So far as the order dated 10.5.1999 passed in Civil Review No. 245/1998 is concerned, suffice it to say that the High Court should have considered the question as to whether the right of the auction purchaser could have been set at naught by reason of a consent order passed in his absence. The appellant was not a party in the First Appeal. He was also not a party to the compromise.37. The consent order, as isis an agreement between the parties with the seal of the Court superadded to it. The appellant herein in the Review Application categorically stated that the parties to the appeal had suppressed the auction sale as also the confirmation thereof. The effect of the events appearing subsequent to the filing of First Appeal resulting in creation of a third party right was bound to be taken into consideration by the High Court. A third party right cannot be set at naught by consent. The High Court, therefore was required to consider the contention of the appellant in their proper perspective. The High Court, in our opinion, was obligated to address itself on these questions for the purpose of reviewing its order.38. In Dwarka Prasad Agarwal (D) By Lrs. and Another vs. B.D. Agarwal and Others [ 2003 (6) SCC 230 ], it wasissues of grave importance were required to be addressed by the High Court. The High Court sought to take a short cut in holding that the said compromise was not binding upon Dwarka Prasad Agarwal and thereby no writ was issued. The consequence of recording of the said compromise wasNot only pursuant thereto or in furtherance thereof the Registrar of Newspapers, New Delhi, passed an order dated 3.9.1992; it was construed to be a judgment of the High Court which had been taken aid of by the respondents herein for the purpose of withdrawal of suits wherein various disputed questions of facts and law including the genuineness or otherwise of the agreements were n question and required adjudication. The High Court was also required to address itself, more so while disposing of the review application, as to whether the purported settlement on the grounds raised by the appellants herein, was a lawful one. Without any application of mind, the High Court proceeded to hold that the agreement was lawful. It did not pose unto itself the right question so as to enable himself to arrive at a finding of fact resulting in correct answer thereto and, thus, the same would amount to a misdirection in law.It was furtherled that an order passed by a court without jurisdiction is a nullity. Any order passed or action taken pursuant thereto or in furtherance thereof would also be nullities. In the instant case, as the High Court did not have any jurisdiction to record the compromise for the reasons stated hereinbefore and in particular as no writ was required to be issued having regard to the fact that public law remedy could not have been resorted to, the impugned orders must be held to be illegal and without jurisdiction and are liable to be set aside. All orders and actions taken pursuant to or in furtherance thereof must also be declared wholly illegal and without jurisdiction and consequently are liable to be set aside. They are declared as such.It will bear repetition to state that any order obtained by practising fraud on court is alsoin the eyes of law.41. It is true that pursuant to or in furtherance of the consent order, the respondents had deposited the amount and the State Government has appropriated the same. The legal issues as regard the effect of commission of fraud on courtthe conduct of the parties are still at large. The High Court was, therefore, required to adjust the equities between the parties. The Bank cannot also unjustly enrich itself insofar as; while enforcing a preliminary decree of mortgage, it cannot take also recourse to recover the decretal amount from theat the expense of the auction purchaser.42. In such an event also, the Court may have to find out a remedy which would be just and equitable.43. The High Court furthermore failed to notice the principle actus curiae neminem gravabit.44. In Rajesh D. Darbar & Others vs. Narasingrao Krishnaji Kulkarni & Ors. 2003 (7) JT 209 ], this Courtcourts can take notice of the subsequent events and can mould the relief accordingly. But there is a rider to these well established principles. This can be done only in exceptional circumstances, some of which have been highlighted above. This equitable principles cannot, however, stand on the way of the court adjudicating the rights already vested by a statute. This well settled position need not detain us, when the second point urged by the appellants is focused. There can be no quarrel with the proposition as noted by the High Court that a party cannot be made to suffer on account of an act of the Court. There is a well recognised maxim of equity, namely, actus curiae neminem gravabit which means an act of the Court shall prejudice no man. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia, i.e. the law does not compel a man to do that what he cannot possibly perform. The applicability of the abovesaid maxims has been approved by this Court in Raj Kumar Dey and ors. vs. Tarapada Dey and Ors. 1987 (4) SCC 398 , Gursharan Singh vs. New Delhi Municipal Committees 1996 (2) SCC 459 and Mohammed Gazi vs. State of M.P. and Ors. 2000 (4) SCC 342."
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Sundari and Others Vs. Laxmi and Others | a notice to Chandayya Shetty stating that they had decided to divide the properties between Chandayya Shetty and themselves and demanded a share belonging to their kavaru. Chandayya Shetty subsequently died on 13th February, 1957. On 23rd March, 1957 Chandayya Shettys wife and her children gave notice claiming a separate share under the will of Chandayya Shetty. It was found that on a demand for partition there was a division of status though partition by metes and bounds had not taken place. There was only two kavarus and in the circumstances it could not be pleaded that joint status between other kavarus continued. There was therefore no undivided interest of a coparcener, within the meaning of section 7 (2) of the Hindu Succession Act. If there was no undivided interest it is clear that provisions of section 7(2) of the Hindu Succession Act cannot apply. In considering the effect of the will the Court agreed with the view of a full Bench of the High Court of Mysore in Sundara Adappa and Ors. v. Girija &Ors. 16. It was contended before the full Bench that by virtue of sec. 30(1) of the Hindu Succession Act the right of the first defendant who had obtain ed a preliminary decree for his 75/360th share of his properties became capable of being disposed of by will and therefore the children of the first defendant would be entitled to the share in accordance with the terms thereof. The Mysore High Court held that the benefit referred to in the Explanation to sec. 30(1) is confined to the interest of a male Hindu in his kutumba and would not apply to the property obtained by him as his share in the preliminary decree. This Court in approving the a bove observations observed."The above statement of the law which meets the several contentions raised before us is in consonance with our own reading of the provisions of the Madras Act and the Succession Act". 17. This Court rejected the pleas t hat the effect of section 17 of the Succession Act was not considered in the Mysore case, holding that the question was not relevant in the case before them or in the Mysore case because sec. 17 of the Succession Act applies to provisions of sect ions 8, 10, 15 and 23 which dealt with intestacy. As we are concerned in the present case with the intestate succession to the estate of defendants 24 and 23, the decisions are not applicable to the facts of this case.The plea of the learn ed counsel for the respondents that even if the property of the defendants 24 and 23 were held to be separate property the succession would be in accordance with Hindu Succession Act by virtue of the provisions of sec. 17 of the Hindu Succession Act will have to be considered. Chapter II of the Hindu Succession Act which deals with the intestate succession is applicable to the property of Hindus and the provisions of this Chapter would prevail over any law which was in force immediately before the commencement of this Act. Therefore the provisions relating to succession of Aliyasanthana Hindus would be by the provisions of the Hindu Succession Act and, not by the Aliyasanthana law. Section 7(2) and sec. 17 of the Hindu Succession Act deal specifically with succession of the property of a Hindu belonging to Aliyasanthana family. While sec. 7(2) relates to devolution of undivided interest in the property of a kutumba or kavaru of a Hindu belonging to a n Aliyasanthana family sec. 17 makes the provisions of sections 8, 10, 15 and 23 with the modifications specified in sec. 17 to the devolution of separate property of a Hindu under the Aliyasanthana law. According to the provision s of sec. 36(5) the property allotted to nissanthathi kavaru at a partition is enjoyed by it only as a life-interest and at the time of the death of the last of its members shall devolve upon the kutumba. This devolution of the life-interest is acc ording to sec. 36(5). When a Hindu governed by the Aliyasanthana law dies possessed of a life interest, after his death the property devolves under the Hindu Succession Act and not under the Aliyasanthana Act and therefore would not revert ba ck to the kutumba. This Court in Jalaja Shedthi &Ors. v. Lakshmi Shedthi &Ors. (supra) while deciding the rights of the parties under a will executed by a Hindu governed by Aliyasanthana law held at p. 719:"Similarly on the same parity of reasoning, when there are two kavarus, a demand for partition would disrupt them and Chandayya Shetty could no longer claim that he had an undivided interest within the meaning of sec. 7(2) of the Succession Act, and if he has no undivided interest in the property, his interest cannot be enlarged into an absolute estate nor can his interest in the property devolve upon his heirs by intestate succession." 18. The words underlined by us relate to intestate succession and the Court has specifically stated that it was not referring to the provisions of sec. 17 of the Hindu Succession Act as it related to intestate succession. These observations relating to intestate succession are therefore in the nature of obiter. The separate property is not enlarged into an absolute estate under sec. 7(2) but on death it devolves on the heirs as provided under the Hindu Succession Act. Therefore it will not revert back to the kutumba but only to the heirs as provided for under the Hindu Succession Act. Similarly in the observations at p. 721 of the Reports where it has observed:"In this case also as already stated, there is no kavaru of Chandayya Shetty, and on separation he had only a life interest which is not a heritable property and cannot be disposed of by a will, nor could it devolve as on intestacy." 19. The reference to devolution on intestacy is again in the nature of obiter dicta. | 0[ds]The result o f the Explanation is that the undivided interest in the property of the Hindu in the Aliyasanthana kutumba or kavaru shall devolve as provided for under the Hindu Succession Act and that the share of the Hindu shall be deemed to have been allotted to him absolutely. The Explanation to sec. 30 of the Hindu Succession Act provides that a member of an Aliyasanthana kutumba or kavaru can dispose of his interest in the kutumba properties by a will. Under the Aliyasanthana law the individual cannot dispose of his interest in the kutumba by a will. Explanation to sec. 30(1) enables the male Hindu in a kutumba or kavaru to dispose of his interest in a kutumba or kavaru which is deemed to be property capable of being dispos ed of by him. Thus while sec. 7(2) provides that when a Hindu to whom the Aliyasanthana law would have applied if this Act had not been passed dies after the commencement of this Act, having at the time of his or her death an undivided interest in the property of kutumba or kavaru as the case may be, under the Hindu Succession Act, sec. 30 enables the male Hindu to dispose of his undivided interest in a kutumba or kavaru by a will. While these two sections relate to undivided interest in the property of the kutumba or kavaru sec. 17 deals with the succession to the separate property of a Hindu male under the Aliyasanthana law. It provides that sections 8, 10, 15 and 23 shall have effect with certain modifications in relation to persons who would have been governed by the Aliyasanthana lawIt may be noted that regarding the separate property of a Hindu the Madras Aliyasanthana Act provides that the provisions of sections 19, 20, 21, 22, 23 and 24 of the Act would be applicable. The separate property does not revert back to the kutumba or kavaru of the Aliyasanthana family. At the time of the partition if any kavaru taking a share is a nissanthathi kavaru, it shall have only a life-interest in the properties allotted to it under certain circumstances and the property would revert back to a santhathi kavaru if it is in existence. Section 36(3) of the Madras Aliyasanthana Act provides that the properties allotted to a nissanthathi kavaru at a partition and in which it had only a life-interest at the time of the death of the last member, shall d evolve upon the kutumba or where the kutumba has broken up, at the same or at a subsequent partition, into a number of kavarus, upon the nearest santhathi kavaru or kavarus. The devolution of the property allotted to a nissathati kavaru which has only a life-interest devolves upon a kutumba or the nearest santhathi kavaru. This mode of devolution prescribed by section 36(5) of the Aliyasanthana Act has to give way to the provisions of section 8 of the Hindu Succession Act which pr escribed a different mode of succession.The effect of the provisions of the Hindu Succession Act above referred to is that after the coming into force of the Hindu Succession Act an undivided interest of a Hindu would devolve as provided for under sec. 7(2) while in the case of separate property it would devolve on his heirs as provided for in the Hindu Succession Act. Even though a nissanthathi kavaru might have a limited interest as the devolution prescribed for in the Madras Aliyasanthana Act is no more applicable the devolution will be under the Hindu Succession ActIn this case the property has been found to be undivided as between defendants 22, 23 and 24 and therefore the position is that on the death of each one of the defendants his undivided interest would devolve on his heirsIn this case it is found there is no material to hold that there was division of status as between defendants 22, 23 and 24. In this view the contentions of the learned counsel for the appellants that the re was division in status on the filing of the suit for partition or that as the mother was dead there were separate kavarus will have to be negativedAs we are concerned in the present case with the intestate succession to the estate of defendants 24 and 23, the decisions are not applicable to the facts of this case.The plea of the learn ed counsel for the respondents that even if the property of the defendants 24 and 23 were held to be separate property the succession would be in accordance with Hindu Succession Act by virtue of the provisions of sec. 17 of the Hindu Succession Act will have to be considered. Chapter II of the Hindu Succession Act which deals with the intestate succession is applicable to the property of Hindus and the provisions of this Chapter would prevail over any law which was in force immediately before the commencement of this Act. Therefore the provisions relating to succession of Aliyasanthana Hindus would be by the provisions of the Hindu Succession Act and, not by the Aliyasanthana law. Section 7(2) and sec. 17 of the Hindu Succession Act deal specifically with succession of the property of a Hindu belonging to Aliyasanthana family. While sec. 7(2) relates to devolution of undivided interest in the property of a kutumba or kavaru of a Hindu belonging to a n Aliyasanthana family sec. 17 makes the provisions of sections 8, 10, 15 and 23 with the modifications specified in sec. 17 to the devolution of separate property of a Hindu under the Aliyasanthana law. According to the provision s of sec. 36(5) the property allotted to nissanthathi kavaru at a partition is enjoyed by it only as a life-interest and at the time of the death of the last of its members shall devolve upon the kutumba. This devolution of the life-interest is acc ording to sec. 36(5). When a Hindu governed by the Aliyasanthana law dies possessed of a life interest, after his death the property devolves under the Hindu Succession Act and not under the Aliyasanthana Act and therefore would not revert ba ck to the kutumba. This Court in Jalaja Shedthi &Ors. v. Lakshmi Shedthi &Ors. (supra) while deciding the rights of the parties under a will executed by a Hindu governed by Aliyasanthana law held at p. 719:"Similarly on the same parity of reasoning, when there are two kavarus, a demand for partition would disrupt them and Chandayya Shetty could no longer claim that he had an undivided interest within the meaning of sec. 7(2) of the Succession Act, and if he has no undivided interest in the property, his interest cannot be enlarged into an absolute estate nor can his interest in the property devolve upon his heirs by intestate succession."The words underlined by us relate to intestate succession and the Court has specifically stated that it was not referring to the provisions of sec. 17 of the Hindu Succession Act as it related to intestate succession. These observations relating to intestate succession are therefore in the nature of obiter. The separate property is not enlarged into an absolute estate under sec. 7(2) but on death it devolves on the heirs as provided under the Hindu Succession Act. Therefore it will not revert back to the kutumba but only to the heirs as provided for under the Hindu Succession Act. Similarly in the observations at p. 721 of the Reports where it has observed:"In this case also as already stated, there is no kavaru of Chandayya Shetty, and on separation he had only a life interest which is not a heritable property and cannot be disposed of by a will, nor could it devolve as on intestacy."The reference to devolution on intestacy is again in the nature of obiter dicta. | 0 | 6,111 | 1,434 | ### 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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a notice to Chandayya Shetty stating that they had decided to divide the properties between Chandayya Shetty and themselves and demanded a share belonging to their kavaru. Chandayya Shetty subsequently died on 13th February, 1957. On 23rd March, 1957 Chandayya Shettys wife and her children gave notice claiming a separate share under the will of Chandayya Shetty. It was found that on a demand for partition there was a division of status though partition by metes and bounds had not taken place. There was only two kavarus and in the circumstances it could not be pleaded that joint status between other kavarus continued. There was therefore no undivided interest of a coparcener, within the meaning of section 7 (2) of the Hindu Succession Act. If there was no undivided interest it is clear that provisions of section 7(2) of the Hindu Succession Act cannot apply. In considering the effect of the will the Court agreed with the view of a full Bench of the High Court of Mysore in Sundara Adappa and Ors. v. Girija &Ors. 16. It was contended before the full Bench that by virtue of sec. 30(1) of the Hindu Succession Act the right of the first defendant who had obtain ed a preliminary decree for his 75/360th share of his properties became capable of being disposed of by will and therefore the children of the first defendant would be entitled to the share in accordance with the terms thereof. The Mysore High Court held that the benefit referred to in the Explanation to sec. 30(1) is confined to the interest of a male Hindu in his kutumba and would not apply to the property obtained by him as his share in the preliminary decree. This Court in approving the a bove observations observed."The above statement of the law which meets the several contentions raised before us is in consonance with our own reading of the provisions of the Madras Act and the Succession Act". 17. This Court rejected the pleas t hat the effect of section 17 of the Succession Act was not considered in the Mysore case, holding that the question was not relevant in the case before them or in the Mysore case because sec. 17 of the Succession Act applies to provisions of sect ions 8, 10, 15 and 23 which dealt with intestacy. As we are concerned in the present case with the intestate succession to the estate of defendants 24 and 23, the decisions are not applicable to the facts of this case.The plea of the learn ed counsel for the respondents that even if the property of the defendants 24 and 23 were held to be separate property the succession would be in accordance with Hindu Succession Act by virtue of the provisions of sec. 17 of the Hindu Succession Act will have to be considered. Chapter II of the Hindu Succession Act which deals with the intestate succession is applicable to the property of Hindus and the provisions of this Chapter would prevail over any law which was in force immediately before the commencement of this Act. Therefore the provisions relating to succession of Aliyasanthana Hindus would be by the provisions of the Hindu Succession Act and, not by the Aliyasanthana law. Section 7(2) and sec. 17 of the Hindu Succession Act deal specifically with succession of the property of a Hindu belonging to Aliyasanthana family. While sec. 7(2) relates to devolution of undivided interest in the property of a kutumba or kavaru of a Hindu belonging to a n Aliyasanthana family sec. 17 makes the provisions of sections 8, 10, 15 and 23 with the modifications specified in sec. 17 to the devolution of separate property of a Hindu under the Aliyasanthana law. According to the provision s of sec. 36(5) the property allotted to nissanthathi kavaru at a partition is enjoyed by it only as a life-interest and at the time of the death of the last of its members shall devolve upon the kutumba. This devolution of the life-interest is acc ording to sec. 36(5). When a Hindu governed by the Aliyasanthana law dies possessed of a life interest, after his death the property devolves under the Hindu Succession Act and not under the Aliyasanthana Act and therefore would not revert ba ck to the kutumba. This Court in Jalaja Shedthi &Ors. v. Lakshmi Shedthi &Ors. (supra) while deciding the rights of the parties under a will executed by a Hindu governed by Aliyasanthana law held at p. 719:"Similarly on the same parity of reasoning, when there are two kavarus, a demand for partition would disrupt them and Chandayya Shetty could no longer claim that he had an undivided interest within the meaning of sec. 7(2) of the Succession Act, and if he has no undivided interest in the property, his interest cannot be enlarged into an absolute estate nor can his interest in the property devolve upon his heirs by intestate succession." 18. The words underlined by us relate to intestate succession and the Court has specifically stated that it was not referring to the provisions of sec. 17 of the Hindu Succession Act as it related to intestate succession. These observations relating to intestate succession are therefore in the nature of obiter. The separate property is not enlarged into an absolute estate under sec. 7(2) but on death it devolves on the heirs as provided under the Hindu Succession Act. Therefore it will not revert back to the kutumba but only to the heirs as provided for under the Hindu Succession Act. Similarly in the observations at p. 721 of the Reports where it has observed:"In this case also as already stated, there is no kavaru of Chandayya Shetty, and on separation he had only a life interest which is not a heritable property and cannot be disposed of by a will, nor could it devolve as on intestacy." 19. The reference to devolution on intestacy is again in the nature of obiter dicta.
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of the Act would be applicable. The separate property does not revert back to the kutumba or kavaru of the Aliyasanthana family. At the time of the partition if any kavaru taking a share is a nissanthathi kavaru, it shall have only a life-interest in the properties allotted to it under certain circumstances and the property would revert back to a santhathi kavaru if it is in existence. Section 36(3) of the Madras Aliyasanthana Act provides that the properties allotted to a nissanthathi kavaru at a partition and in which it had only a life-interest at the time of the death of the last member, shall d evolve upon the kutumba or where the kutumba has broken up, at the same or at a subsequent partition, into a number of kavarus, upon the nearest santhathi kavaru or kavarus. The devolution of the property allotted to a nissathati kavaru which has only a life-interest devolves upon a kutumba or the nearest santhathi kavaru. This mode of devolution prescribed by section 36(5) of the Aliyasanthana Act has to give way to the provisions of section 8 of the Hindu Succession Act which pr escribed a different mode of succession.The effect of the provisions of the Hindu Succession Act above referred to is that after the coming into force of the Hindu Succession Act an undivided interest of a Hindu would devolve as provided for under sec. 7(2) while in the case of separate property it would devolve on his heirs as provided for in the Hindu Succession Act. Even though a nissanthathi kavaru might have a limited interest as the devolution prescribed for in the Madras Aliyasanthana Act is no more applicable the devolution will be under the Hindu Succession ActIn this case the property has been found to be undivided as between defendants 22, 23 and 24 and therefore the position is that on the death of each one of the defendants his undivided interest would devolve on his heirsIn this case it is found there is no material to hold that there was division of status as between defendants 22, 23 and 24. In this view the contentions of the learned counsel for the appellants that the re was division in status on the filing of the suit for partition or that as the mother was dead there were separate kavarus will have to be negativedAs we are concerned in the present case with the intestate succession to the estate of defendants 24 and 23, the decisions are not applicable to the facts of this case.The plea of the learn ed counsel for the respondents that even if the property of the defendants 24 and 23 were held to be separate property the succession would be in accordance with Hindu Succession Act by virtue of the provisions of sec. 17 of the Hindu Succession Act will have to be considered. Chapter II of the Hindu Succession Act which deals with the intestate succession is applicable to the property of Hindus and the provisions of this Chapter would prevail over any law which was in force immediately before the commencement of this Act. Therefore the provisions relating to succession of Aliyasanthana Hindus would be by the provisions of the Hindu Succession Act and, not by the Aliyasanthana law. Section 7(2) and sec. 17 of the Hindu Succession Act deal specifically with succession of the property of a Hindu belonging to Aliyasanthana family. While sec. 7(2) relates to devolution of undivided interest in the property of a kutumba or kavaru of a Hindu belonging to a n Aliyasanthana family sec. 17 makes the provisions of sections 8, 10, 15 and 23 with the modifications specified in sec. 17 to the devolution of separate property of a Hindu under the Aliyasanthana law. According to the provision s of sec. 36(5) the property allotted to nissanthathi kavaru at a partition is enjoyed by it only as a life-interest and at the time of the death of the last of its members shall devolve upon the kutumba. This devolution of the life-interest is acc ording to sec. 36(5). When a Hindu governed by the Aliyasanthana law dies possessed of a life interest, after his death the property devolves under the Hindu Succession Act and not under the Aliyasanthana Act and therefore would not revert ba ck to the kutumba. This Court in Jalaja Shedthi &Ors. v. Lakshmi Shedthi &Ors. (supra) while deciding the rights of the parties under a will executed by a Hindu governed by Aliyasanthana law held at p. 719:"Similarly on the same parity of reasoning, when there are two kavarus, a demand for partition would disrupt them and Chandayya Shetty could no longer claim that he had an undivided interest within the meaning of sec. 7(2) of the Succession Act, and if he has no undivided interest in the property, his interest cannot be enlarged into an absolute estate nor can his interest in the property devolve upon his heirs by intestate succession."The words underlined by us relate to intestate succession and the Court has specifically stated that it was not referring to the provisions of sec. 17 of the Hindu Succession Act as it related to intestate succession. These observations relating to intestate succession are therefore in the nature of obiter. The separate property is not enlarged into an absolute estate under sec. 7(2) but on death it devolves on the heirs as provided under the Hindu Succession Act. Therefore it will not revert back to the kutumba but only to the heirs as provided for under the Hindu Succession Act. Similarly in the observations at p. 721 of the Reports where it has observed:"In this case also as already stated, there is no kavaru of Chandayya Shetty, and on separation he had only a life interest which is not a heritable property and cannot be disposed of by a will, nor could it devolve as on intestacy."The reference to devolution on intestacy is again in the nature of obiter dicta.
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Vegetable Products Ltd Vs. Their Workmen | payment in 1959 cannot be taken into account as it was made and accepted ex gratia and was hedged in by a condition. We may in this connection refer to M/s. Tulsidas Khimji v. Their Workmen (1963) 1 SCR 675 :(AIR 1963 SC 1007 ), where it was held that a claim for customary bonus may be negatived on proof that the payment was made ex gratia and accepted as such, or that it was unconnected with any such occasion as a festival. In the present case the settlement shows that the payment was made ex gratia and was accepted as such. Therefore, so far as this year is concerned, the payment cannot be taken as having been made towards customary or traditional Puja bonus and thus there would be a break in the payment of such bonus.10. Then we may refer to what had happened in 1960 and 1961, which has also been ignored by the tribunal. The Secretary of the Union of the workmen admitted that in 1960 as well as in 1961, payment was made at the rate of 30 days wages before Puja as bonus. But in both the years the workmen gave a receipt in terms which stated that the payment was made as advance to be adjusted against profit bonus for the previous year. This again shows that the payment for these years was not towards customary or traditional Puja bonus. What we find is that payment was made unconditionally in the years from 1954 to 1958 and that may have been evidence of traditional or customary Puja bonus. But in 1959 the payment was made ex gratia and accepted as such; in 1960 and 1961 the payment was clearly made on condition that it would be adjusted towards the profit bonus for the previous year and was accepted as such. In these circumstances we cannot find that there has been payment for an unbroken series of years before the dispute was referred to the tribunal. Consequently the conclusion of the tribunal that payment of customary or traditional bonus on the occasion of the Puja festival has been established in this concern must be set aside.11. We now come to profit bonus. We shall first take the year ending December 1960. in that year the tribunal found that the available surplus was Rs. 4,000. It, however, ordered the payment of one months profit bonus which comes to Rs. 12,000. Obviously when the available surplus was Rs. 4,000 only, the tribunal could not award a bonus of Rs. 12,000, and in the circumstance there could be no profit bonus at all for that year. it is not denied on behalf of the workmen that the tribunal made a mistake in its award for the year 1960. Therefore, the award of the tribunal granting profit bonus for the year 1960 must be set aside.12. Finally we come to the year ending December 1959. The tribunal found the available surplus to be Rs. 1,04,000. It awarded four months wages at the rate of Rs.12,000 per month (i.e. Rs. 48,000 in all) as profit bonus for that year. On the basis of this available surplus, the amount awarded by the tribunal appears reasonable. The appellant, however, attacks the correctness of the calculation on two grounds. In the first place it is urged that the tribunal was wrong in holding that rehabilitation charges came to Rs. 54,000 only. The tribunal arrived at this figure by deducting Rs.1,23,000 as depreciation from the amount determined by it as rehabilitation charge for the year. It is, however, pointed out that as the tribunal did not allow rehabilitation on certain items at all, the depreciation with respect to those items could not be deducted and the correct amount to be deducted from the rehabilitation charge was Rs. 1,07,000. This appears to be correct. But this will reduce the available surplus from Rs. 1,04,000 to Rs. 88,000. Even on this available surplus payment of four months wages as bonus cannot be said to be unreasonable, particularly taking into account the rebate on income-tax which the appellant will get.13. Secondly it is urged that the tribunal should have allowed a higher multiplier than 1.25 for machinery purchased before 1949. In this connection the appellant relied on a letter of the English company which originally supplied part of the plant giving the price at the time and the price prevalent in 1961. From that it does appear that the price has gone up more than double the original price for that part of the plant. But there are two circumstances which have to be taken into account in this connection and which the tribunal has mentioned. The first is the difficulty in finding out what was the original price of all the machinery purchased before 1949 which has to be rehabilitated. In that connection the tribunal has accepted the figure 13.1 lakhs given by the appellant though there was no satisfactory evidence to prove that. Further with respect to the multiplier the tribunal has observed that for want of proper evidence it was once inclined to reject the claim for rehabilitation totally; but taking into account the general rise of prices of plant and machinery since 1949, the tribunal thought it proper to allow 1.25 as the multiplier. It does appear to us that 1.25 may not be the proper multiplier in this case, but in the absence of sufficient and proper evidence to prove the original cost price of plant and machinery purchased before 1949 and to prove the increase in price of the rest of the plant besides that purchased from the English company, we do not think that we should interfere with the finding of the tribunal on this point. We are, therefore, not prepared in the circumstances to allow a higher multiplier. In this view of the matter; the tribunals award of four months wages (at the rate of Rs. 12,000 per month) as profit bonus for the year 1959 must stand. | 1[ds]So far as the contention that such payment had become an implied condition of service is concerned, it does not appear to have been seriously pressed before the tribunal; and in any case it stood negatived by the fact that in 1959 the payment was made and accepted as ex gratia. It is, therefore, necessary only to consider whether the tribunal was right in holding that payment of one months wages at the time of Puja as customary bonus has beetappears that the concern in question was established sometime after 1946 but it went into liquidation and the appellant purchased it in 1953. It is not known what happened at the time of the earlier owner but it appears from the evidence of the Secretary of the Union of the workmen that Puja bonus was paid for the first time on the eve of the Puja festival in 1954 at the rate of 10 days wages. In 1955 it was paid at the rate of 20 days wages. From 1956 to 1961 the payment has been made before Puja at 30 days wages. The tribunal has ignored the payment in the first two years and has come to the conclusion that there has been payment at a uniform rate from 1956 to 1961 and that establishes that there is a custom of payment at the rate of 30 years wages as bonus before Puja it this concern. Now if the facts were only these the tribunal may very well have ignored the payment in the first two years and held that as there had been payment at the rate of 30 days wages from 1956 to 1961, that established uniformity in payment. But the tribunal has apparently ignored evidence which militates against payment of customary or traditional bonus on the occasion of a festival like Puja being had proved. It appears that from 1956 to 1958 payment was made without any dispute and without conditions. But in 1959 a dispute arose as to payment of Puja bonus for that year and was settled before the conciliation officer by a settlement between the appellant and itswill be clear from this term in the settlement that in 1959 the payment was not unconditional. It was paid ex gratia (out of bounty) and accepted as such by the workmen. This is not a case where the employer made unilateral declaration that the payment was ex gratia. This was a case where the appellant said that the payment was ex gratia and the workmen accepted the payment as ex gratia. Besides there was a further condition that the payment would be made to those workmen only who had completed 240 days work by the day of payment. Now in the case of customary or traditional bonus there can be no such condition and a customary or traditional bonus connected with a festival has to be paid to all employees irrespective of the number of days they might have worked before the festival in the year in question. In these circumstances the payment in 1959 cannot be taken into account as it was made and accepted ex gratia and was hedged in by athe present case the settlement shows that the payment was made ex gratia and was accepted as such. Therefore, so far as this year is concerned, the payment cannot be taken as having been made towards customary or traditional Puja bonus and thus there would be a break in the payment of such bonus.10. Then we may refer to what had happened in 1960 and 1961, which has also been ignored by the tribunal. The Secretary of the Union of the workmen admitted that in 1960 as well as in 1961, payment was made at the rate of 30 days wages before Puja as bonus. But in both the years the workmen gave a receipt in terms which stated that the payment was made as advance to be adjusted against profit bonus for the previous year. This again shows that the payment for these years was not towards customary or traditional Puja bonus. What we find is that payment was made unconditionally in the years from 1954 to 1958 and that may have been evidence of traditional or customary Puja bonus. But in 1959 the payment was made ex gratia and accepted as such; in 1960 and 1961 the payment was clearly made on condition that it would be adjusted towards the profit bonus for the previous year and was accepted as such. In these circumstances we cannot find that there has been payment for an unbroken series of years before the dispute was referred to the tribunal. Consequently the conclusion of the tribunal that payment of customary or traditional bonus on the occasion of the Puja festival has been established in this concern must be set aside.11. We now come to profit bonus. We shall first take the year ending December 1960. in that year the tribunal found that the available surplus was Rs. 4,000. It, however, ordered the payment of one months profit bonus which comes to Rs. 12,000. Obviously when the available surplus was Rs. 4,000 only, the tribunal could not award a bonus of Rs. 12,000, and in the circumstance there could be no profit bonus at all for that year. it is not denied on behalf of the workmen that the tribunal made a mistake in its award for the year 1960. Therefore, the award of the tribunal granting profit bonus for the year 1960 must be set aside.12. Finally we come to the year ending December 1959. The tribunal found the available surplus to be Rs. 1,04,000. It awarded four months wages at the rate of Rs.12,000 per month (i.e. Rs. 48,000 in all) as profit bonus for that year. On the basis of this available surplus, the amount awarded by the tribunal appearstribunal arrived at this figure by deducting Rs.1,23,000 as depreciation from the amount determined by it as rehabilitation charge for the year.It is, however, pointed out that as the tribunal did not allow rehabilitation on certain items at all, the depreciation with respect to those items could not be deducted and the correct amount to be deducted from the rehabilitation charge was Rs. 1,07,000.This appears to be correct. But this will reduce the available surplus from Rs. 1,04,000 to Rs. 88,000. Even on this available surplus payment of four months wages as bonus cannot be said to be unreasonable, particularly taking into account the rebate onwhich the appellant willthat it does appear that the price has gone up more than double the original price for that part of the plant. But there are two circumstances which have to be taken into account in this connection and which the tribunal has mentioned. The first is the difficulty in finding out what was the original price of all the machinery purchased before 1949 which has to be rehabilitated. In that connection the tribunal has accepted the figure 13.1 lakhs given by the appellant though there was no satisfactory evidence to prove that. Further with respect to the multiplier the tribunal has observed that for want of proper evidence it was once inclined to reject the claim for rehabilitation totally; but taking into account the general rise of prices of plant and machinery since 1949, the tribunal thought it proper to allow 1.25 as the multiplier. It does appear to us that 1.25 may not be the proper multiplier in this case, but in the absence of sufficient and proper evidence to prove the original cost price of plant and machinery purchased before 1949 and to prove the increase in price of the rest of the plant besides that purchased from the English company, we do not think that we should interfere with the finding of the tribunal on this point. We are, therefore, not prepared in the circumstances to allow a higher multiplier. In this view of the matter; the tribunals award of four months wages (at the rate of Rs. 12,000 per month) as profit bonus for the year 1959 must stand. | 1 | 2,808 | 1,444 | ### Instruction:
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payment in 1959 cannot be taken into account as it was made and accepted ex gratia and was hedged in by a condition. We may in this connection refer to M/s. Tulsidas Khimji v. Their Workmen (1963) 1 SCR 675 :(AIR 1963 SC 1007 ), where it was held that a claim for customary bonus may be negatived on proof that the payment was made ex gratia and accepted as such, or that it was unconnected with any such occasion as a festival. In the present case the settlement shows that the payment was made ex gratia and was accepted as such. Therefore, so far as this year is concerned, the payment cannot be taken as having been made towards customary or traditional Puja bonus and thus there would be a break in the payment of such bonus.10. Then we may refer to what had happened in 1960 and 1961, which has also been ignored by the tribunal. The Secretary of the Union of the workmen admitted that in 1960 as well as in 1961, payment was made at the rate of 30 days wages before Puja as bonus. But in both the years the workmen gave a receipt in terms which stated that the payment was made as advance to be adjusted against profit bonus for the previous year. This again shows that the payment for these years was not towards customary or traditional Puja bonus. What we find is that payment was made unconditionally in the years from 1954 to 1958 and that may have been evidence of traditional or customary Puja bonus. But in 1959 the payment was made ex gratia and accepted as such; in 1960 and 1961 the payment was clearly made on condition that it would be adjusted towards the profit bonus for the previous year and was accepted as such. In these circumstances we cannot find that there has been payment for an unbroken series of years before the dispute was referred to the tribunal. Consequently the conclusion of the tribunal that payment of customary or traditional bonus on the occasion of the Puja festival has been established in this concern must be set aside.11. We now come to profit bonus. We shall first take the year ending December 1960. in that year the tribunal found that the available surplus was Rs. 4,000. It, however, ordered the payment of one months profit bonus which comes to Rs. 12,000. Obviously when the available surplus was Rs. 4,000 only, the tribunal could not award a bonus of Rs. 12,000, and in the circumstance there could be no profit bonus at all for that year. it is not denied on behalf of the workmen that the tribunal made a mistake in its award for the year 1960. Therefore, the award of the tribunal granting profit bonus for the year 1960 must be set aside.12. Finally we come to the year ending December 1959. The tribunal found the available surplus to be Rs. 1,04,000. It awarded four months wages at the rate of Rs.12,000 per month (i.e. Rs. 48,000 in all) as profit bonus for that year. On the basis of this available surplus, the amount awarded by the tribunal appears reasonable. The appellant, however, attacks the correctness of the calculation on two grounds. In the first place it is urged that the tribunal was wrong in holding that rehabilitation charges came to Rs. 54,000 only. The tribunal arrived at this figure by deducting Rs.1,23,000 as depreciation from the amount determined by it as rehabilitation charge for the year. It is, however, pointed out that as the tribunal did not allow rehabilitation on certain items at all, the depreciation with respect to those items could not be deducted and the correct amount to be deducted from the rehabilitation charge was Rs. 1,07,000. This appears to be correct. But this will reduce the available surplus from Rs. 1,04,000 to Rs. 88,000. Even on this available surplus payment of four months wages as bonus cannot be said to be unreasonable, particularly taking into account the rebate on income-tax which the appellant will get.13. Secondly it is urged that the tribunal should have allowed a higher multiplier than 1.25 for machinery purchased before 1949. In this connection the appellant relied on a letter of the English company which originally supplied part of the plant giving the price at the time and the price prevalent in 1961. From that it does appear that the price has gone up more than double the original price for that part of the plant. But there are two circumstances which have to be taken into account in this connection and which the tribunal has mentioned. The first is the difficulty in finding out what was the original price of all the machinery purchased before 1949 which has to be rehabilitated. In that connection the tribunal has accepted the figure 13.1 lakhs given by the appellant though there was no satisfactory evidence to prove that. Further with respect to the multiplier the tribunal has observed that for want of proper evidence it was once inclined to reject the claim for rehabilitation totally; but taking into account the general rise of prices of plant and machinery since 1949, the tribunal thought it proper to allow 1.25 as the multiplier. It does appear to us that 1.25 may not be the proper multiplier in this case, but in the absence of sufficient and proper evidence to prove the original cost price of plant and machinery purchased before 1949 and to prove the increase in price of the rest of the plant besides that purchased from the English company, we do not think that we should interfere with the finding of the tribunal on this point. We are, therefore, not prepared in the circumstances to allow a higher multiplier. In this view of the matter; the tribunals award of four months wages (at the rate of Rs. 12,000 per month) as profit bonus for the year 1959 must stand.
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a settlement between the appellant and itswill be clear from this term in the settlement that in 1959 the payment was not unconditional. It was paid ex gratia (out of bounty) and accepted as such by the workmen. This is not a case where the employer made unilateral declaration that the payment was ex gratia. This was a case where the appellant said that the payment was ex gratia and the workmen accepted the payment as ex gratia. Besides there was a further condition that the payment would be made to those workmen only who had completed 240 days work by the day of payment. Now in the case of customary or traditional bonus there can be no such condition and a customary or traditional bonus connected with a festival has to be paid to all employees irrespective of the number of days they might have worked before the festival in the year in question. In these circumstances the payment in 1959 cannot be taken into account as it was made and accepted ex gratia and was hedged in by athe present case the settlement shows that the payment was made ex gratia and was accepted as such. Therefore, so far as this year is concerned, the payment cannot be taken as having been made towards customary or traditional Puja bonus and thus there would be a break in the payment of such bonus.10. Then we may refer to what had happened in 1960 and 1961, which has also been ignored by the tribunal. The Secretary of the Union of the workmen admitted that in 1960 as well as in 1961, payment was made at the rate of 30 days wages before Puja as bonus. But in both the years the workmen gave a receipt in terms which stated that the payment was made as advance to be adjusted against profit bonus for the previous year. This again shows that the payment for these years was not towards customary or traditional Puja bonus. What we find is that payment was made unconditionally in the years from 1954 to 1958 and that may have been evidence of traditional or customary Puja bonus. But in 1959 the payment was made ex gratia and accepted as such; in 1960 and 1961 the payment was clearly made on condition that it would be adjusted towards the profit bonus for the previous year and was accepted as such. In these circumstances we cannot find that there has been payment for an unbroken series of years before the dispute was referred to the tribunal. Consequently the conclusion of the tribunal that payment of customary or traditional bonus on the occasion of the Puja festival has been established in this concern must be set aside.11. We now come to profit bonus. We shall first take the year ending December 1960. in that year the tribunal found that the available surplus was Rs. 4,000. It, however, ordered the payment of one months profit bonus which comes to Rs. 12,000. Obviously when the available surplus was Rs. 4,000 only, the tribunal could not award a bonus of Rs. 12,000, and in the circumstance there could be no profit bonus at all for that year. it is not denied on behalf of the workmen that the tribunal made a mistake in its award for the year 1960. Therefore, the award of the tribunal granting profit bonus for the year 1960 must be set aside.12. Finally we come to the year ending December 1959. The tribunal found the available surplus to be Rs. 1,04,000. It awarded four months wages at the rate of Rs.12,000 per month (i.e. Rs. 48,000 in all) as profit bonus for that year. On the basis of this available surplus, the amount awarded by the tribunal appearstribunal arrived at this figure by deducting Rs.1,23,000 as depreciation from the amount determined by it as rehabilitation charge for the year.It is, however, pointed out that as the tribunal did not allow rehabilitation on certain items at all, the depreciation with respect to those items could not be deducted and the correct amount to be deducted from the rehabilitation charge was Rs. 1,07,000.This appears to be correct. But this will reduce the available surplus from Rs. 1,04,000 to Rs. 88,000. Even on this available surplus payment of four months wages as bonus cannot be said to be unreasonable, particularly taking into account the rebate onwhich the appellant willthat it does appear that the price has gone up more than double the original price for that part of the plant. But there are two circumstances which have to be taken into account in this connection and which the tribunal has mentioned. The first is the difficulty in finding out what was the original price of all the machinery purchased before 1949 which has to be rehabilitated. In that connection the tribunal has accepted the figure 13.1 lakhs given by the appellant though there was no satisfactory evidence to prove that. Further with respect to the multiplier the tribunal has observed that for want of proper evidence it was once inclined to reject the claim for rehabilitation totally; but taking into account the general rise of prices of plant and machinery since 1949, the tribunal thought it proper to allow 1.25 as the multiplier. It does appear to us that 1.25 may not be the proper multiplier in this case, but in the absence of sufficient and proper evidence to prove the original cost price of plant and machinery purchased before 1949 and to prove the increase in price of the rest of the plant besides that purchased from the English company, we do not think that we should interfere with the finding of the tribunal on this point. We are, therefore, not prepared in the circumstances to allow a higher multiplier. In this view of the matter; the tribunals award of four months wages (at the rate of Rs. 12,000 per month) as profit bonus for the year 1959 must stand.
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S.J. Coke Industries Pvt. Ltd. Etc Vs. Central Coalfields Ltd. Etc | enrichment was repelled. In this view of the matter, we fail to appreciate as to on what basis, the another Coal Company alike Eastern Coal Company can now be allowed to raise the same plea again in these proceedings only because this matter arise from another High Court. In other words, we are of the considered opinion that this Court having rejected the issue of undue enrichment in the case of Eastern Coalfields (supra) while dealing with the similar controversy, the same issue is no longer available to any other Coal Company to raise in similar pending proceedings. It is more so when no distinguishing feature in both the cases were brought to our notice. 40. Coming now to the issue of refund of excess amount payable to the writ petitioners, we find that this Court has examined the said issue in para 13 and decided in favour of the writ petitioners in following words. ?13. In the present case, it is a case of refund of price recovered by the appellant in excess and not of any kind of payment of tax or duty. Besides, the appellant has already refunded such excess amount realised to many other parties without raising any such plea. If anything is done by a party in violation of the law, consequence has to follow and they are bound to return the money to the parties from whom excess amount has been realised. There is also no document placed on record in support of any such plea. Bald allegation of this nature cannot be accepted particularly when no such plea has been raised in this Court.? 41. In the light of aforesaid law laid down, we find no justification to deny the benefit of such law to the present Companies(writ petitioners) on the ground of parity with the writ petitioner of Central Coalfields Ltd. and Eastern Coalfields Ltd case. 42. As taken note of supra, in our opinion having regard to the background facts of this case, the right to file writ petition to claim refund of excess amount arose after the issue was decided by this Court firstly on 19.07.2010 when this Court dismissed the SLP filed by Central Coalfield Ltd. in limine and upheld the reasoned order of the Patna High Court on this very issue. It is not in dispute that the Companies filed the writ petitions on 10.08.2010 (within one month from the date of the decision of this Court in Central Coalfields Ltd. case). Indeed, the Companies could have filed the writ petitions even subsequent to the decision rendered in the case of Eastern Coalfield Ltd. (10.08.2011) because it is in this case, this Court rendered a reasoned judgment finally repelling all the objections of Coal Companies on merits and upheld the right of the writ petitioners to claim refund of excess amount which they had paid to CCL and other coal fields pursuant to the Scheme. 43. We cannot, therefore, concur with the view taken by the Division Bench when it proceeded to dismiss the writ petitions on the ground of delay and laches. The Single Judge, in our view, rightly entertained the writ petitions on merits and proceeded to grant relief as claimed by the companies in the writ petition and the Division Bench, in our opinion, should have upheld the view of the Single Judge.44. In the light of foregoing discussion, we find that all the five submissions urged by the learned counsel for the Companies (writ petitioners) found acceptance to this court in the case of Eastern Coalfields Ltd., and hence the same deserves to be accepted while deciding these appeals by placing reliance on the law laid down in Eastern Coalfields Ltd. We, therefore, do not consider necessary to deal with these submissions again on their respective merits elaborately by taking note of various case law cited by learned counsel for the appellant.45. Since we have rejected the ground taken by the Central Coalfields India Ltd. (CCL) in relation to undue enrichment on merits, and hence we express no opinion as to whether the appeals filed by them only against the finding is maintainable or not. We also find that no prayer was made by learned counsel for the CCL to treat or convert the appeals filed by CCL as memorandum of cross objection under Order 41 Rule 22 of the Code of Civil Procedure, 1908, in appeals filed by ompanies so as to enable them to challenge the impugned finding under order 41 Rule 22. We also do not wish to examine the question as to whether cross objection is permissible on behalf of respondent in an appeal arising out of SLP filed under Article 136 and leave all these questions open to be decided in an appropriate case as and when occasion arises in future. 46. Before parting with the case, we consider it opposite to state that this case reminds us of the subtle observations made by Justice M.C. Chagla, Chief Justice of Bombay High Court in Firm Kaluram Sitaram Vs. The Dominion of India, AIR 1954 Bombay 50. The learned Chief Justice in his distinctive style of writing held as under: ?….we have often had occasion to say that when the State deals with a citizen it should not ordinarily rely on technicalities, and if the State is satisfied that the case of the citizen is a just one, even though legal defences may be open to it, it must act, as has been said by eminent judges, as an honest person……….? 47. Keeping in view the stand taken by the CCL and the manner in which they contested the cases at all stages in different High Courts and in this Court by raising same pleas despite their adjudication by this Court lead us to draw a conclusion that untenable pleas were being raised by CCL just to defeat the legitimate claim of the citizens determined in their favour by this Court in earlier litigations and which was known to CCL. | 1[ds]33. In our considered view, all the issues arising in these cases including the submissions urged by the learned counsel for the parties as mentioned above were already decided by this Court in the case of Eastern Coalfields Ltd. (supra) and hence the writ petitions and the appeals arising therefrom should have been decided by the writ court and the appellate court (Division Bench) in the light of the law laid down in the said decision.34. It is really unfortunate that though the decision of this Court in the Eastern Coalfields Ltd.(supra) was holding the field having been rendered during the pendency of the writ petition on 10.08.2011 yet neither the Single Judge who decided the writ petition on 02.04.2012 and nor the Division Bench who decided the appeal on 14.12.2012 took note of the decision much less referred to it in their respective judgments. We cannot, therefore, countenance the approach of the two courts below in deciding the issue though it was of reversal.We cannot, therefore, concur with the view taken by the Division Bench when it proceeded to dismiss the writ petitions on the ground of delay and laches. The Single Judge, in our view, rightly entertained the writ petitions on merits and proceeded to grant relief as claimed by the companies in the writ petition and the Division Bench, in our opinion, should have upheld the view of the Single Judge.44. In the light of foregoing discussion, we find that all the five submissions urged by the learned counsel for the Companies (writ petitioners) found acceptance to this court in the case of Eastern Coalfields Ltd., and hence the same deserves to be accepted while deciding these appeals by placing reliance on the law laid down in Eastern Coalfields Ltd. We, therefore, do not consider necessary to deal with these submissions again on their respective merits elaborately by taking note of various case law cited by learned counsel for the appellant.45. Since we have rejected the ground taken by the Central Coalfields India Ltd. (CCL) in relation to undue enrichment on merits, and hence we express no opinion as to whether the appeals filed by them only against the finding is maintainable or not. We also find that no prayer was made by learned counsel for the CCL to treat or convert the appeals filed by CCL as memorandum of cross objection under Order 41 Rule 22 of the Code of Civil Procedure, 1908, in appeals filed by ompanies so as to enable them to challenge the impugned finding under order 41 Rule 22. We also do not wish to examine the question as to whether cross objection is permissible on behalf of respondent in an appeal arising out of SLP filed under Article 136 and leave all these questions open to be decided in an appropriate case as and when occasion arises in future.Keeping in view the stand taken by the CCL and the manner in which they contested the cases at all stages in different High Courts and in this Court by raising same pleas despite their adjudication by this Court lead us to draw a conclusion that untenable pleas were being raised by CCL just to defeat the legitimate claim of the citizens determined in their favour by this Court in earlier litigations and which was known to | 1 | 6,104 | 595 | ### Instruction:
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enrichment was repelled. In this view of the matter, we fail to appreciate as to on what basis, the another Coal Company alike Eastern Coal Company can now be allowed to raise the same plea again in these proceedings only because this matter arise from another High Court. In other words, we are of the considered opinion that this Court having rejected the issue of undue enrichment in the case of Eastern Coalfields (supra) while dealing with the similar controversy, the same issue is no longer available to any other Coal Company to raise in similar pending proceedings. It is more so when no distinguishing feature in both the cases were brought to our notice. 40. Coming now to the issue of refund of excess amount payable to the writ petitioners, we find that this Court has examined the said issue in para 13 and decided in favour of the writ petitioners in following words. ?13. In the present case, it is a case of refund of price recovered by the appellant in excess and not of any kind of payment of tax or duty. Besides, the appellant has already refunded such excess amount realised to many other parties without raising any such plea. If anything is done by a party in violation of the law, consequence has to follow and they are bound to return the money to the parties from whom excess amount has been realised. There is also no document placed on record in support of any such plea. Bald allegation of this nature cannot be accepted particularly when no such plea has been raised in this Court.? 41. In the light of aforesaid law laid down, we find no justification to deny the benefit of such law to the present Companies(writ petitioners) on the ground of parity with the writ petitioner of Central Coalfields Ltd. and Eastern Coalfields Ltd case. 42. As taken note of supra, in our opinion having regard to the background facts of this case, the right to file writ petition to claim refund of excess amount arose after the issue was decided by this Court firstly on 19.07.2010 when this Court dismissed the SLP filed by Central Coalfield Ltd. in limine and upheld the reasoned order of the Patna High Court on this very issue. It is not in dispute that the Companies filed the writ petitions on 10.08.2010 (within one month from the date of the decision of this Court in Central Coalfields Ltd. case). Indeed, the Companies could have filed the writ petitions even subsequent to the decision rendered in the case of Eastern Coalfield Ltd. (10.08.2011) because it is in this case, this Court rendered a reasoned judgment finally repelling all the objections of Coal Companies on merits and upheld the right of the writ petitioners to claim refund of excess amount which they had paid to CCL and other coal fields pursuant to the Scheme. 43. We cannot, therefore, concur with the view taken by the Division Bench when it proceeded to dismiss the writ petitions on the ground of delay and laches. The Single Judge, in our view, rightly entertained the writ petitions on merits and proceeded to grant relief as claimed by the companies in the writ petition and the Division Bench, in our opinion, should have upheld the view of the Single Judge.44. In the light of foregoing discussion, we find that all the five submissions urged by the learned counsel for the Companies (writ petitioners) found acceptance to this court in the case of Eastern Coalfields Ltd., and hence the same deserves to be accepted while deciding these appeals by placing reliance on the law laid down in Eastern Coalfields Ltd. We, therefore, do not consider necessary to deal with these submissions again on their respective merits elaborately by taking note of various case law cited by learned counsel for the appellant.45. Since we have rejected the ground taken by the Central Coalfields India Ltd. (CCL) in relation to undue enrichment on merits, and hence we express no opinion as to whether the appeals filed by them only against the finding is maintainable or not. We also find that no prayer was made by learned counsel for the CCL to treat or convert the appeals filed by CCL as memorandum of cross objection under Order 41 Rule 22 of the Code of Civil Procedure, 1908, in appeals filed by ompanies so as to enable them to challenge the impugned finding under order 41 Rule 22. We also do not wish to examine the question as to whether cross objection is permissible on behalf of respondent in an appeal arising out of SLP filed under Article 136 and leave all these questions open to be decided in an appropriate case as and when occasion arises in future. 46. Before parting with the case, we consider it opposite to state that this case reminds us of the subtle observations made by Justice M.C. Chagla, Chief Justice of Bombay High Court in Firm Kaluram Sitaram Vs. The Dominion of India, AIR 1954 Bombay 50. The learned Chief Justice in his distinctive style of writing held as under: ?….we have often had occasion to say that when the State deals with a citizen it should not ordinarily rely on technicalities, and if the State is satisfied that the case of the citizen is a just one, even though legal defences may be open to it, it must act, as has been said by eminent judges, as an honest person……….? 47. Keeping in view the stand taken by the CCL and the manner in which they contested the cases at all stages in different High Courts and in this Court by raising same pleas despite their adjudication by this Court lead us to draw a conclusion that untenable pleas were being raised by CCL just to defeat the legitimate claim of the citizens determined in their favour by this Court in earlier litigations and which was known to CCL.
### Response:
1
### Explanation:
33. In our considered view, all the issues arising in these cases including the submissions urged by the learned counsel for the parties as mentioned above were already decided by this Court in the case of Eastern Coalfields Ltd. (supra) and hence the writ petitions and the appeals arising therefrom should have been decided by the writ court and the appellate court (Division Bench) in the light of the law laid down in the said decision.34. It is really unfortunate that though the decision of this Court in the Eastern Coalfields Ltd.(supra) was holding the field having been rendered during the pendency of the writ petition on 10.08.2011 yet neither the Single Judge who decided the writ petition on 02.04.2012 and nor the Division Bench who decided the appeal on 14.12.2012 took note of the decision much less referred to it in their respective judgments. We cannot, therefore, countenance the approach of the two courts below in deciding the issue though it was of reversal.We cannot, therefore, concur with the view taken by the Division Bench when it proceeded to dismiss the writ petitions on the ground of delay and laches. The Single Judge, in our view, rightly entertained the writ petitions on merits and proceeded to grant relief as claimed by the companies in the writ petition and the Division Bench, in our opinion, should have upheld the view of the Single Judge.44. In the light of foregoing discussion, we find that all the five submissions urged by the learned counsel for the Companies (writ petitioners) found acceptance to this court in the case of Eastern Coalfields Ltd., and hence the same deserves to be accepted while deciding these appeals by placing reliance on the law laid down in Eastern Coalfields Ltd. We, therefore, do not consider necessary to deal with these submissions again on their respective merits elaborately by taking note of various case law cited by learned counsel for the appellant.45. Since we have rejected the ground taken by the Central Coalfields India Ltd. (CCL) in relation to undue enrichment on merits, and hence we express no opinion as to whether the appeals filed by them only against the finding is maintainable or not. We also find that no prayer was made by learned counsel for the CCL to treat or convert the appeals filed by CCL as memorandum of cross objection under Order 41 Rule 22 of the Code of Civil Procedure, 1908, in appeals filed by ompanies so as to enable them to challenge the impugned finding under order 41 Rule 22. We also do not wish to examine the question as to whether cross objection is permissible on behalf of respondent in an appeal arising out of SLP filed under Article 136 and leave all these questions open to be decided in an appropriate case as and when occasion arises in future.Keeping in view the stand taken by the CCL and the manner in which they contested the cases at all stages in different High Courts and in this Court by raising same pleas despite their adjudication by this Court lead us to draw a conclusion that untenable pleas were being raised by CCL just to defeat the legitimate claim of the citizens determined in their favour by this Court in earlier litigations and which was known to
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M/S Tech Invest India Pvt. Ltd. Through Major Shareholder Rajiv Gosain Vs. Assam Power And Electricals Ltd | appellant accordingly expressed apprehension about the highest price being secured. The Company Judge disposed of the application vide order dated 26.09.2003 refusing to interfere with the auction and directed the appellant-company to raise the aforesaid objections at the time of confirmation of sale.6. In the auction, respondent no. 3 purchased the assets of the appellant-company for Rs. 45.55 lakhs and deposited 10% of the consideration. Vide order dated 28.05.2004, respondent no. 3 was directed to deposit the remaining amount after it was noted that the counsel for the major shareholders in the appellant-company had no objection. Noting that respondent no. 3 had deposited the said amount as directed, the sale in favour of respondent no. 3 was confirmed and possession of the assets of the company was directed to be given vide order dated 30.06.2004.7. Rajiv Gosain, a shareholder in the appellant-company, filed an application for rejecting the auction sale and for re-auction. It was alleged that respondent no. 1 and the Official Liquidator had appointed S. K. Ahuja & Associates who had inspected the assets of the appellant-company and valued the assets to be worth Rs. 6.25 crores. The same was said to have been communicated to the petitioner vide letter dated 15.05.2000 and it was in turn said to have been communicated by the appellant-company to the Official Liquidator vide letter dated 26.06.2003. The Official Liquidator was, however, alleged to have not informed the High Court of the valuation by S. K. Ahuja and Associates and consequently secured permission for valuation on 23.02.2000 pursuant to which the Official Liquidator was alleged to have illegally and with mala fide intention appointed an ineligible valuer, Mr. S. B. Bhargava, to value the assets of the appellant-company. Mr. S. B. Bhargava was alleged to have drastically and illegally reduced the value of the assets of the appellant-company to Rs. 76.80 lakhs and his report was submitted to the High Court by the Official Liquidator. The same was alleged to have led to the issuance of an erroneous auction notice which did not mention minimum reserve price and many other vital details and which notice only came to the knowledge of a very limited number of individuals. The auction was further challenged on the ground of procedural irregularity.8. One Advocate Mr. Sharad Sharma appeared before the High Court on 13.04.2004 claiming to represent the shareholders of the appellant-company and the matter was listed for filing of objections by him and on 30.04.2004 one last opportunity was given to him for filing of objections.9. On 28.05.2004, the High Court, after noting that the counsel representing the shareholders of the appellant-company had no objections, directed respondent no. 3 to deposit the remaining amount. On 30.06.2004, the High Court confirmed the sale in favour of respondent no. 3 and the assets of the appellant-company were directed to be given to respondent no. 3.10. The appellant-company filed an appeal to the Division Bench of the High Court contending that its assets were worth much more than the price at which it was sold and that its objections were not considered at the time of confirmation of sale. The Division Bench dismissed the appeal vide judgment dated 16.07.2012 on the ground that the counsel for the appellant-company had not made any objections at the time the sale was confirmed.11. The appellant-company filed a review application alleging that the counsel who claimed to be representing the appellant-company before the Company Judge on 28th May, 2004 was not engaged by them and hence there was an error on the face of judgment dated 16.07.2012 which had made recorded the same. The High Court, however, held that such a statement in the judgment dated 16.07.2012 was a mere repetition of what was stated in the order dated 28.05.2004 of the Company Judge and hence an error, if any, was in the order dated 28.05.2004 which was appealed against by the appellant-company. The High Court held that the appeal filed by the appellant-company was dismissed mainly because the sale was confirmed in favour of respondent no. 3, possession handed over and encumbrances created, before any steps were taken by the appellant-company. The High Court accordingly dismissed the review application vide judgment dated 25.09.2012.12. Hence, the present appeals. 13. We have heard learned counsel for the parties. We have also perused the entire facts of the case and the order passed by the High Court. 14. Prima facie, it appears that the objections raised by the appellant were not properly considered inasmuch as the objections were not heard on merit and the auction sale was confirmed. Shri Sharad Sharma, Advocate, had made the aforesaid statement before the Company Court on 28.5.2004, however, he had never been engaged either by Mr. Rajiv Gosain or by any person authorized by him. Therefore, making statement by the Advocate that he has no instruction or waiving the disposal of objection on merit, was without any basis which ought to have been considered by the High Court. 15. Be that as it may, the conduct of the Official Liquidator in selling the property at a price of Rs. 45.45 lakhs without proper publicity through advertisement or fixing any reserve price for the assets cannot be sustained in law, particularly, when the predecessor Official Liquidator reported that the property put in auction is of much higher valuation. 16. Having considered the illegality and irregularity committed in the auction sale of the property, the entire process is vitiated. Further we are of the view that the Company Judge also failed to exercise its judicial discretion to see that the properties are sold at a reasonable price.17. Apart from that, when the valuation report was submitted before the Company Judge, it ought to have been disclosed the secured creditors and other interested persons in order to ascertain the market value of the property before property was auction sold. Since the same has not been done, the auction sale and the order confirming the sale are liable to be set aside. | 1[ds]16. Having considered the illegality and irregularity committed in the auction sale of the property, the entire process is vitiated. Further we are of the view that the Company Judge also failed to exercise its judicial discretion to see that the properties are sold at a reasonable price.17. Apart from that, when the valuation report was submitted before the Company Judge, it ought to have been disclosed the secured creditors and other interested persons in order to ascertain the market value of the property before property was auction sold. Since the same has not been done, the auction sale and the order confirming the sale are liable to be set aside. | 1 | 1,382 | 124 | ### 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:
appellant accordingly expressed apprehension about the highest price being secured. The Company Judge disposed of the application vide order dated 26.09.2003 refusing to interfere with the auction and directed the appellant-company to raise the aforesaid objections at the time of confirmation of sale.6. In the auction, respondent no. 3 purchased the assets of the appellant-company for Rs. 45.55 lakhs and deposited 10% of the consideration. Vide order dated 28.05.2004, respondent no. 3 was directed to deposit the remaining amount after it was noted that the counsel for the major shareholders in the appellant-company had no objection. Noting that respondent no. 3 had deposited the said amount as directed, the sale in favour of respondent no. 3 was confirmed and possession of the assets of the company was directed to be given vide order dated 30.06.2004.7. Rajiv Gosain, a shareholder in the appellant-company, filed an application for rejecting the auction sale and for re-auction. It was alleged that respondent no. 1 and the Official Liquidator had appointed S. K. Ahuja & Associates who had inspected the assets of the appellant-company and valued the assets to be worth Rs. 6.25 crores. The same was said to have been communicated to the petitioner vide letter dated 15.05.2000 and it was in turn said to have been communicated by the appellant-company to the Official Liquidator vide letter dated 26.06.2003. The Official Liquidator was, however, alleged to have not informed the High Court of the valuation by S. K. Ahuja and Associates and consequently secured permission for valuation on 23.02.2000 pursuant to which the Official Liquidator was alleged to have illegally and with mala fide intention appointed an ineligible valuer, Mr. S. B. Bhargava, to value the assets of the appellant-company. Mr. S. B. Bhargava was alleged to have drastically and illegally reduced the value of the assets of the appellant-company to Rs. 76.80 lakhs and his report was submitted to the High Court by the Official Liquidator. The same was alleged to have led to the issuance of an erroneous auction notice which did not mention minimum reserve price and many other vital details and which notice only came to the knowledge of a very limited number of individuals. The auction was further challenged on the ground of procedural irregularity.8. One Advocate Mr. Sharad Sharma appeared before the High Court on 13.04.2004 claiming to represent the shareholders of the appellant-company and the matter was listed for filing of objections by him and on 30.04.2004 one last opportunity was given to him for filing of objections.9. On 28.05.2004, the High Court, after noting that the counsel representing the shareholders of the appellant-company had no objections, directed respondent no. 3 to deposit the remaining amount. On 30.06.2004, the High Court confirmed the sale in favour of respondent no. 3 and the assets of the appellant-company were directed to be given to respondent no. 3.10. The appellant-company filed an appeal to the Division Bench of the High Court contending that its assets were worth much more than the price at which it was sold and that its objections were not considered at the time of confirmation of sale. The Division Bench dismissed the appeal vide judgment dated 16.07.2012 on the ground that the counsel for the appellant-company had not made any objections at the time the sale was confirmed.11. The appellant-company filed a review application alleging that the counsel who claimed to be representing the appellant-company before the Company Judge on 28th May, 2004 was not engaged by them and hence there was an error on the face of judgment dated 16.07.2012 which had made recorded the same. The High Court, however, held that such a statement in the judgment dated 16.07.2012 was a mere repetition of what was stated in the order dated 28.05.2004 of the Company Judge and hence an error, if any, was in the order dated 28.05.2004 which was appealed against by the appellant-company. The High Court held that the appeal filed by the appellant-company was dismissed mainly because the sale was confirmed in favour of respondent no. 3, possession handed over and encumbrances created, before any steps were taken by the appellant-company. The High Court accordingly dismissed the review application vide judgment dated 25.09.2012.12. Hence, the present appeals. 13. We have heard learned counsel for the parties. We have also perused the entire facts of the case and the order passed by the High Court. 14. Prima facie, it appears that the objections raised by the appellant were not properly considered inasmuch as the objections were not heard on merit and the auction sale was confirmed. Shri Sharad Sharma, Advocate, had made the aforesaid statement before the Company Court on 28.5.2004, however, he had never been engaged either by Mr. Rajiv Gosain or by any person authorized by him. Therefore, making statement by the Advocate that he has no instruction or waiving the disposal of objection on merit, was without any basis which ought to have been considered by the High Court. 15. Be that as it may, the conduct of the Official Liquidator in selling the property at a price of Rs. 45.45 lakhs without proper publicity through advertisement or fixing any reserve price for the assets cannot be sustained in law, particularly, when the predecessor Official Liquidator reported that the property put in auction is of much higher valuation. 16. Having considered the illegality and irregularity committed in the auction sale of the property, the entire process is vitiated. Further we are of the view that the Company Judge also failed to exercise its judicial discretion to see that the properties are sold at a reasonable price.17. Apart from that, when the valuation report was submitted before the Company Judge, it ought to have been disclosed the secured creditors and other interested persons in order to ascertain the market value of the property before property was auction sold. Since the same has not been done, the auction sale and the order confirming the sale are liable to be set aside.
### Response:
1
### Explanation:
16. Having considered the illegality and irregularity committed in the auction sale of the property, the entire process is vitiated. Further we are of the view that the Company Judge also failed to exercise its judicial discretion to see that the properties are sold at a reasonable price.17. Apart from that, when the valuation report was submitted before the Company Judge, it ought to have been disclosed the secured creditors and other interested persons in order to ascertain the market value of the property before property was auction sold. Since the same has not been done, the auction sale and the order confirming the sale are liable to be set aside.
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Indian Oil Corporation Ltd Vs. M/s. SPS Engineering Ltd | earlier arbitration proceedings. Thirdly, admittedly there is no challenge to the award dated 27.10.2008 by the present petition whereby its counter claim was rejected. Fourthly, I am of the view that once a risk and cost tender is issued at the risk and cost of a person, then, the amount which is to be claimed from the person who is guilty of breach of contract and against whom risk and cost is tendered, becomes crystallized when the risk purchase tender at a higher cost is awarded. Once a higher cost of work is known as compared to the cost of the work for the earlier work for which the earlier contract was there and with respect to which the earlier contractor was in breach, then not only the amount becomes crystallized but limitation also commences for filing of the legal proceedings against the person in breach of obligations under the earlier contract. It cannot be that limitation and a right continues indefinitely to be extended till the performance is completed under a subsequent risk purchase contract. This would give complete uncertainty to the period of limitation striking at the very root of one of the principles of the Limitation Act and which is that evidence is lost by passage of time and which will cause grave prejudice to the person against whom a stale claim is filed." 15. The appellant submitted that having regard to clause 7.0.9.0 of the contract, damages can be claimed by it (as employer), in regard to the additional amount incurred for getting the work completed through an alternative agency at the risk and cost of the contractor along with the supervision charges, only when the amount was actually expended for completion of the entire work; and therefore, unless the work was completed by the alternative agency and the final bill was settled or finalized, the actual extra cost could not be determined. It was pointed out that in the first round of arbitration, the hearing was concluded by the Arbitrator on 13.3.2008 and matter was reserved for orders and the award was declared on 27.10.2008; that the work was completed by the alternative agency on 29.12.2007 and final bill of the alternative agency was drawn and settled only on 7.5.2008, after the conclusion of the hearing, by the Arbitrator; that the actual extra cost could be worked out only when the final bill was prepared, and not on the date of completion of work; that therefore the appellant could not make the claim for actual extra cost, in the first round arbitration. It was also submitted that the appellant was not expected to give details of completion of work and preparation of the final bill, or produce documents in support of it in a proceeding under section 11 of the Act; and that the Designate was not therefore justified in finding fault with the appellant for not stating the date of settlement of the final bill in the petition under section 11 of the Act and for not producing the final bill. 16. The appellant also contended that when its statement of counter claim was amended before the Arbitrator, the appellant had only indicated its estimation of the probable extra cost to be Rs.2,10,41,626/-, as advance indication of a claim to be made in future on the basis of actuals, and that it had not prayed for award of the said amount in the said proceeding. It was pointed out that even after mentioning the proposed claim by amending the statement of counter claim, the actual counter claim before the arbitrator remained as only Rs.92,72,529/- exclusive of any claim on account of the risk completion cost. It was submitted that having regard to clause 7.0.9.0, the counter claim for extra cost could not have been made when the first arbitration was in progress and that the arbitrator had in fact noticed in his award (at para 102) that only when the cost actually incurred, the appellant could make the claim for the extra cost. It is contended that the "rejection" by the arbitrator was not on the ground that the claim for extra cost was not recoverable, nor on the ground that no extra cost was involved in completing the work, but on the ground that as on the date of the award, the appellant had not actually incurred any specific extra cost; and that as the arbitrator clearly held that any claim for extra cost was premature and could not be considered at that stage, the observation that `I reject this counter claim only meant that the claim relating to extra cost was not being considered in that award and that appellant should make the claims separately after the amount was actually expended. 17. Clause 7.0.9.0 of the contract relied upon by the appellant reads thus : "clause 7.0.9.0Upon termination of the contract, the owner shall be entitled at the risk and expenses of the contractor by itself or through any independent contractor(s) or partly by itself and/or partly through independent contractor(s) to complete to its entirety the work as contemplated in the scope of work and to recover from the contractor in addition to any other amounts, compensations or damages that the owner may in terms hereof or otherwise be entitled to (including compensation within the provisions of clause 4.4.0.0 and clause 7.0.7.0 hereof) the difference between the amounts as would have been payable to the contractor in respect of the work (calculated as provided for in clause 6.2.1.0 hereof read with the associated provisions thereunder and clause 6.3.1.0 hereof) and the amount actually expended by the owner for completion of the entire work as aforesaid together with 15% (fifteen per cent) thereof to cover owners supervision charges, and in the event of the latter being in the excess former, the owner shall be entitled (without prejudice to any other mode of recovery available to the owner) to recover the excess from security deposit or any monies due to the contractor." (emphasis supplied) | 0[ds]11. To find out whether a claim is barred by res judicata, or whether a claim is "mala fide", it will be necessary to examine the facts and relevant documents. What is to be decided in an application under section 11 of the Act is whether there is an arbitration agreement between parties. The Chief Justice or his designate is not expected to go into the merits of the claim or examine the tenability of the claim, in an application under section 11 of the Act. The Chief Justice or his Designate may however choose to decide whether the claim is a dead (long-barred) claim or whether the parties have, by recording satisfaction, exhausted all rights, obligations and remedies under the contract, so that neither the contract nor the arbitration agreement survived. When it is said that the Chief Justice or his Designate may choose to decide whether the claim is a dead claim, it is implied that he will do so only when the claim is evidently and patently a long time barred claim and there is no need for any detailed consideration of evidence.An application under section 11 of the Act is expected to contain pleadings about the existence of a dispute and the existence of an arbitration agreement to decide such dispute. The applicant is not expected to justify the claim or plead exhaustively in regard to limitation or produce documents to demonstrate that the claim is within time in a proceedings under section 11 of the Act.The award amount due to the respondent under the award dated 27.10.2008 is an ascertained sum due, recoverable by executing the award as a decree. On the other hand the claim of the appellant for reimbursement of the extra cost for getting the work completed, is a claim for damages which is yet to be adjudicated by an adjudicating forum. The appellant cannot therefore adjust the amount due by it under the award, against a mere claim for damages made by it against the respondent. The appellant will have to pay the award amount due to the respondent and if necessary modify its claim for extra cost against the respondent. | 0 | 4,463 | 390 | ### 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:
earlier arbitration proceedings. Thirdly, admittedly there is no challenge to the award dated 27.10.2008 by the present petition whereby its counter claim was rejected. Fourthly, I am of the view that once a risk and cost tender is issued at the risk and cost of a person, then, the amount which is to be claimed from the person who is guilty of breach of contract and against whom risk and cost is tendered, becomes crystallized when the risk purchase tender at a higher cost is awarded. Once a higher cost of work is known as compared to the cost of the work for the earlier work for which the earlier contract was there and with respect to which the earlier contractor was in breach, then not only the amount becomes crystallized but limitation also commences for filing of the legal proceedings against the person in breach of obligations under the earlier contract. It cannot be that limitation and a right continues indefinitely to be extended till the performance is completed under a subsequent risk purchase contract. This would give complete uncertainty to the period of limitation striking at the very root of one of the principles of the Limitation Act and which is that evidence is lost by passage of time and which will cause grave prejudice to the person against whom a stale claim is filed." 15. The appellant submitted that having regard to clause 7.0.9.0 of the contract, damages can be claimed by it (as employer), in regard to the additional amount incurred for getting the work completed through an alternative agency at the risk and cost of the contractor along with the supervision charges, only when the amount was actually expended for completion of the entire work; and therefore, unless the work was completed by the alternative agency and the final bill was settled or finalized, the actual extra cost could not be determined. It was pointed out that in the first round of arbitration, the hearing was concluded by the Arbitrator on 13.3.2008 and matter was reserved for orders and the award was declared on 27.10.2008; that the work was completed by the alternative agency on 29.12.2007 and final bill of the alternative agency was drawn and settled only on 7.5.2008, after the conclusion of the hearing, by the Arbitrator; that the actual extra cost could be worked out only when the final bill was prepared, and not on the date of completion of work; that therefore the appellant could not make the claim for actual extra cost, in the first round arbitration. It was also submitted that the appellant was not expected to give details of completion of work and preparation of the final bill, or produce documents in support of it in a proceeding under section 11 of the Act; and that the Designate was not therefore justified in finding fault with the appellant for not stating the date of settlement of the final bill in the petition under section 11 of the Act and for not producing the final bill. 16. The appellant also contended that when its statement of counter claim was amended before the Arbitrator, the appellant had only indicated its estimation of the probable extra cost to be Rs.2,10,41,626/-, as advance indication of a claim to be made in future on the basis of actuals, and that it had not prayed for award of the said amount in the said proceeding. It was pointed out that even after mentioning the proposed claim by amending the statement of counter claim, the actual counter claim before the arbitrator remained as only Rs.92,72,529/- exclusive of any claim on account of the risk completion cost. It was submitted that having regard to clause 7.0.9.0, the counter claim for extra cost could not have been made when the first arbitration was in progress and that the arbitrator had in fact noticed in his award (at para 102) that only when the cost actually incurred, the appellant could make the claim for the extra cost. It is contended that the "rejection" by the arbitrator was not on the ground that the claim for extra cost was not recoverable, nor on the ground that no extra cost was involved in completing the work, but on the ground that as on the date of the award, the appellant had not actually incurred any specific extra cost; and that as the arbitrator clearly held that any claim for extra cost was premature and could not be considered at that stage, the observation that `I reject this counter claim only meant that the claim relating to extra cost was not being considered in that award and that appellant should make the claims separately after the amount was actually expended. 17. Clause 7.0.9.0 of the contract relied upon by the appellant reads thus : "clause 7.0.9.0Upon termination of the contract, the owner shall be entitled at the risk and expenses of the contractor by itself or through any independent contractor(s) or partly by itself and/or partly through independent contractor(s) to complete to its entirety the work as contemplated in the scope of work and to recover from the contractor in addition to any other amounts, compensations or damages that the owner may in terms hereof or otherwise be entitled to (including compensation within the provisions of clause 4.4.0.0 and clause 7.0.7.0 hereof) the difference between the amounts as would have been payable to the contractor in respect of the work (calculated as provided for in clause 6.2.1.0 hereof read with the associated provisions thereunder and clause 6.3.1.0 hereof) and the amount actually expended by the owner for completion of the entire work as aforesaid together with 15% (fifteen per cent) thereof to cover owners supervision charges, and in the event of the latter being in the excess former, the owner shall be entitled (without prejudice to any other mode of recovery available to the owner) to recover the excess from security deposit or any monies due to the contractor." (emphasis supplied)
### Response:
0
### Explanation:
11. To find out whether a claim is barred by res judicata, or whether a claim is "mala fide", it will be necessary to examine the facts and relevant documents. What is to be decided in an application under section 11 of the Act is whether there is an arbitration agreement between parties. The Chief Justice or his designate is not expected to go into the merits of the claim or examine the tenability of the claim, in an application under section 11 of the Act. The Chief Justice or his Designate may however choose to decide whether the claim is a dead (long-barred) claim or whether the parties have, by recording satisfaction, exhausted all rights, obligations and remedies under the contract, so that neither the contract nor the arbitration agreement survived. When it is said that the Chief Justice or his Designate may choose to decide whether the claim is a dead claim, it is implied that he will do so only when the claim is evidently and patently a long time barred claim and there is no need for any detailed consideration of evidence.An application under section 11 of the Act is expected to contain pleadings about the existence of a dispute and the existence of an arbitration agreement to decide such dispute. The applicant is not expected to justify the claim or plead exhaustively in regard to limitation or produce documents to demonstrate that the claim is within time in a proceedings under section 11 of the Act.The award amount due to the respondent under the award dated 27.10.2008 is an ascertained sum due, recoverable by executing the award as a decree. On the other hand the claim of the appellant for reimbursement of the extra cost for getting the work completed, is a claim for damages which is yet to be adjudicated by an adjudicating forum. The appellant cannot therefore adjust the amount due by it under the award, against a mere claim for damages made by it against the respondent. The appellant will have to pay the award amount due to the respondent and if necessary modify its claim for extra cost against the respondent.
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Commissioner Of Income-Tax, Andhra Pradesh Vs. The Cocanada Bank Ltd. Kakinada | Co-operative Bank Ltd. v. Commr. of Income-tax, Lahore, (1940) 8 ITR 635 at p. 645 : (AIR 1940 PC 230 at p. 236), has clearly brought out the business connection between the securities of a bank and its business, thus:"In the ordinary case of a bank, the business consists in its essence of dealing with money and credit. Numerous depositors place their money with the bank often receiving a small rate of interest on it. A number of borrowers receive loans of a large part of these deposited funds at somewhat higher rates of interest. But the banker has always to keep enough cash or easily realisable securities to meet any probable demand by the depositors." In the present case the Tribunal held, on the evidence and that was accepted by the High Court, that the assessee was investing its amounts in easily realisable securities and, therefore, the said securities were part of the trading assets of the assessees banking business. The decision of this Court in 1958 SCR 79: (S) AIR 1957 SC 918 ) does not lay down any different proposition. It held, after an exhaustive review of the authorities, that under the scheme of the Income-tax Act, 1922, the head of income, profits an gains enumerated in the different clauses of S. 6 were mutually exclusive each specific head covering items of income arising from a particular source. On that reasoning this Court held that even though the securities were part of the trading assets of the company doing business, the income therefrom had to be assessed under S. 8 of the Act. This decision does not say that the income from securities is not income from the business. Nor does the decision of this Court in East India Housing and Land Development Trust Ltd. v. Commr. of Income-tax, West Bengal, (1961) 42 ITR 49 (SC) support the contention of the Revenue. There, a company, which was incorporated with the objects of having and developing landed properties and promoting and developing markets, purchased 10 bighas of land in the town of Calcutta and set up a market therein. The question was whether the income realised from the tenants of the shops and stalls was liable to be taxed as "business income" under S. 10 of the Income-tax Act or as income from property under S. 9 thereof. This Court held that the said income fell under the specific head mentioned in S. 9 of the Act. This case also does not lay down that the income from the shops is not the income in the business. In Commr. of Income-tax, Madras v. Express Newspapers Ltd., (1964) 53 ITR 250 at p. 260 : (AIR 1965 SC 38 at p. 39) this Court held that both S. 26 (2) and the proviso thereto dealt only with profits and gains of a business profession or vocation and they did not provide for the assessment of income under any other head, e.g., capital gains. The reason for that conclusion is stated thus:"In (the deeming clause in S. 12B) only introduced a limited fiction, namely, that capital gains accrued will be deemed to be income of the previous year in which the sale was effected. The fiction does not make them the profits or gains of the business. It is well settled that a legal fiction is limited to the purpose for which it is created and should not be extended beyond its legitimate field. . . .. .The profits and gains of business and capital gains are two distinct concepts in the Income-tax Act: the former arises from the activity which is called business and the latter accrues because capital assets are disposed of at a value higher than what they cost the assessee. They are placed under different heads; they are derived from different sources; and the income is computed under different methods. The fact that the capital gains are connected with the capital assets of the business cannot make them the profit of the business. They are only deemed to be income of the previous year and not the profits or gains arising from the business during that year." It will be seen that the reason for the conclusion was that capital gains were not income from the business. Though some observations divorced from content may appear to be wide, the said decision was mainly based upon the character of the capital gains and not upon their non-inclusion under the heading "business". The limited scope of the earlier decision was explained by this Court in Commr. of Income-tax, Bombay City I v. Chugandas and Co., (1965) 55 ITR 17 at p. 24: (AIR 1965 SC 568 at p. 572). Therein this Court held that interest from securities formed part of the assessees business income for the purpose of exemption under S. 25(3) Shah J. speaking for the Court, observed:"The heads described in S. 6 and further elaborated for the purpose of computation of income in sections 7 to 10 and 12, 12A, 12AA and 12B are intended merely to indicate the classes of income; the heads do not exhaustively delimit sources from which income arises. This is made clear in the judgment of this Court in the United Commercial Bank Ltds case, 1958 SCR 79: ((S) AIR 1957 SC 918 ), that business income is broken up under different heads only for the purposes of computation of the total income; by that break up the income does not cease to be income of the business, the different heads of income being only the classification prescribed by the Indian Income-tax Act for computation of income." The same principle applies to the present case. 8. We, therefore, hold that under S. 24(2) of the Act the income from the securities which formed part of the assessees trading assets was part of its income in the business and therefore, the loss incurred in the business in the earlier year could be set off against that income also in the succeeding years. | 0[ds]In the present case the Tribunal held, on the evidence and that was accepted by the High Court, that the assessee was investing its amounts in easily realisable securities and, therefore, the said securities were part of the trading assets of the assessees banking business. The decision of this Court in 1958 SCR 79: (S) AIR 1957 SC 918 ) does not lay down any different proposition. It held, after an exhaustive review of the authorities, that under the scheme of the Income-tax Act, 1922, the head of income, profits an gains enumerated in the different clauses of S. 6 were mutually exclusive each specific head covering items of income arising from a particular source. On that reasoning this Court held that even though the securities were part of the trading assets of the company doing business, the income therefrom had to be assessed under S. 8 of the Act. This decision does not say that the income from securities is not income from the business. Nor does the decision of this Court in East India Housing and Land Development Trust Ltd. v. Commr. of Income-tax, West Bengal, (1961) 42 ITR 49 (SC) support the contention of the Revenue. There, a company, which was incorporated with the objects of having and developing landed properties and promoting and developing markets, purchased 10 bighas of land in the town of Calcutta and set up a market therein. The question was whether the income realised from the tenants of the shops and stalls was liable to be taxed as "business income" under S. 10 of the Income-tax Act or as income from property under S. 9 thereof. This Court held that the said income fell under the specific head mentioned in S. 9 of the Act. This case also does not lay down that the income from the shops is not the income in the business. In Commr. of Income-tax, Madras v. Express Newspapers Ltd., (1964) 53 ITR 250 at p. 260 : (AIR 1965 SC 38 at p. 39) this Court held that both S. 26 (2) and the proviso thereto dealt only with profits and gains of a business profession or vocation and they did not provide for the assessment of income under any other head, e.g., capital gains. The reason for that conclusion is stated thus:"In (the deeming clause in S. 12B) only introduced a limited fiction, namely, that capital gains accrued will be deemed to be income of the previous year in which the sale was effected. The fiction does not make them the profits or gains of the business. It is well settled that a legal fiction is limited to the purpose for which it is created and should not be extended beyond its legitimate field. . . .. .The profits and gains of business and capital gains are two distinct concepts in the Income-tax Act: the former arises from the activity which is called business and the latter accrues because capital assets are disposed of at a value higher than what they cost the assessee. They are placed under different heads; they are derived from different sources; and the income is computed under different methods. The fact that the capital gains are connected with the capital assets of the business cannot make them the profit of the business. They are only deemed to be income of the previous year and not the profits or gains arising from the business during that year."It will be seen that the reason for the conclusion was that capital gains were not income from the business. Though some observations divorced from content may appear to be wide, the said decision was mainly based upon the character of the capital gains and not upon their non-inclusion under the heading "business". The limited scope of the earlier decision was explained by this Court in Commr. of Income-tax, Bombay City I v. Chugandas and Co., (1965) 55 ITR 17 at p. 24: (AIR 1965 SC 568 at p. 572). Therein this Court held that interest from securities formed part of the assessees business income for the purpose of exemption under S. 25(3) Shah J. speaking for the Court, observed:"The heads described in S. 6 and further elaborated for the purpose of computation of income in sections 7 to 10 and 12, 12A, 12AA and 12B are intended merely to indicate the classes of income; the heads do not exhaustively delimit sources from which income arises. This is made clear in the judgment of this Court in the United Commercial Bank Ltds case, 1958 SCR 79: ((S) AIR 1957 SC 918 ), that business income is broken up under different heads only for the purposes of computation of the total income; by that break up the income does not cease to be income of the business, the different heads of income being only the classification prescribed by the Indian Income-tax Act for computation of income."The same principle applies to the present case8. We, therefore, hold that under S. 24(2) of the Act the income from the securities which formed part of the assessees trading assets was part of its income in the business and therefore, the loss incurred in the business in the earlier year could be set off against that income also in the succeeding years. | 0 | 2,910 | 996 | ### Instruction:
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Co-operative Bank Ltd. v. Commr. of Income-tax, Lahore, (1940) 8 ITR 635 at p. 645 : (AIR 1940 PC 230 at p. 236), has clearly brought out the business connection between the securities of a bank and its business, thus:"In the ordinary case of a bank, the business consists in its essence of dealing with money and credit. Numerous depositors place their money with the bank often receiving a small rate of interest on it. A number of borrowers receive loans of a large part of these deposited funds at somewhat higher rates of interest. But the banker has always to keep enough cash or easily realisable securities to meet any probable demand by the depositors." In the present case the Tribunal held, on the evidence and that was accepted by the High Court, that the assessee was investing its amounts in easily realisable securities and, therefore, the said securities were part of the trading assets of the assessees banking business. The decision of this Court in 1958 SCR 79: (S) AIR 1957 SC 918 ) does not lay down any different proposition. It held, after an exhaustive review of the authorities, that under the scheme of the Income-tax Act, 1922, the head of income, profits an gains enumerated in the different clauses of S. 6 were mutually exclusive each specific head covering items of income arising from a particular source. On that reasoning this Court held that even though the securities were part of the trading assets of the company doing business, the income therefrom had to be assessed under S. 8 of the Act. This decision does not say that the income from securities is not income from the business. Nor does the decision of this Court in East India Housing and Land Development Trust Ltd. v. Commr. of Income-tax, West Bengal, (1961) 42 ITR 49 (SC) support the contention of the Revenue. There, a company, which was incorporated with the objects of having and developing landed properties and promoting and developing markets, purchased 10 bighas of land in the town of Calcutta and set up a market therein. The question was whether the income realised from the tenants of the shops and stalls was liable to be taxed as "business income" under S. 10 of the Income-tax Act or as income from property under S. 9 thereof. This Court held that the said income fell under the specific head mentioned in S. 9 of the Act. This case also does not lay down that the income from the shops is not the income in the business. In Commr. of Income-tax, Madras v. Express Newspapers Ltd., (1964) 53 ITR 250 at p. 260 : (AIR 1965 SC 38 at p. 39) this Court held that both S. 26 (2) and the proviso thereto dealt only with profits and gains of a business profession or vocation and they did not provide for the assessment of income under any other head, e.g., capital gains. The reason for that conclusion is stated thus:"In (the deeming clause in S. 12B) only introduced a limited fiction, namely, that capital gains accrued will be deemed to be income of the previous year in which the sale was effected. The fiction does not make them the profits or gains of the business. It is well settled that a legal fiction is limited to the purpose for which it is created and should not be extended beyond its legitimate field. . . .. .The profits and gains of business and capital gains are two distinct concepts in the Income-tax Act: the former arises from the activity which is called business and the latter accrues because capital assets are disposed of at a value higher than what they cost the assessee. They are placed under different heads; they are derived from different sources; and the income is computed under different methods. The fact that the capital gains are connected with the capital assets of the business cannot make them the profit of the business. They are only deemed to be income of the previous year and not the profits or gains arising from the business during that year." It will be seen that the reason for the conclusion was that capital gains were not income from the business. Though some observations divorced from content may appear to be wide, the said decision was mainly based upon the character of the capital gains and not upon their non-inclusion under the heading "business". The limited scope of the earlier decision was explained by this Court in Commr. of Income-tax, Bombay City I v. Chugandas and Co., (1965) 55 ITR 17 at p. 24: (AIR 1965 SC 568 at p. 572). Therein this Court held that interest from securities formed part of the assessees business income for the purpose of exemption under S. 25(3) Shah J. speaking for the Court, observed:"The heads described in S. 6 and further elaborated for the purpose of computation of income in sections 7 to 10 and 12, 12A, 12AA and 12B are intended merely to indicate the classes of income; the heads do not exhaustively delimit sources from which income arises. This is made clear in the judgment of this Court in the United Commercial Bank Ltds case, 1958 SCR 79: ((S) AIR 1957 SC 918 ), that business income is broken up under different heads only for the purposes of computation of the total income; by that break up the income does not cease to be income of the business, the different heads of income being only the classification prescribed by the Indian Income-tax Act for computation of income." The same principle applies to the present case. 8. We, therefore, hold that under S. 24(2) of the Act the income from the securities which formed part of the assessees trading assets was part of its income in the business and therefore, the loss incurred in the business in the earlier year could be set off against that income also in the succeeding years.
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In the present case the Tribunal held, on the evidence and that was accepted by the High Court, that the assessee was investing its amounts in easily realisable securities and, therefore, the said securities were part of the trading assets of the assessees banking business. The decision of this Court in 1958 SCR 79: (S) AIR 1957 SC 918 ) does not lay down any different proposition. It held, after an exhaustive review of the authorities, that under the scheme of the Income-tax Act, 1922, the head of income, profits an gains enumerated in the different clauses of S. 6 were mutually exclusive each specific head covering items of income arising from a particular source. On that reasoning this Court held that even though the securities were part of the trading assets of the company doing business, the income therefrom had to be assessed under S. 8 of the Act. This decision does not say that the income from securities is not income from the business. Nor does the decision of this Court in East India Housing and Land Development Trust Ltd. v. Commr. of Income-tax, West Bengal, (1961) 42 ITR 49 (SC) support the contention of the Revenue. There, a company, which was incorporated with the objects of having and developing landed properties and promoting and developing markets, purchased 10 bighas of land in the town of Calcutta and set up a market therein. The question was whether the income realised from the tenants of the shops and stalls was liable to be taxed as "business income" under S. 10 of the Income-tax Act or as income from property under S. 9 thereof. This Court held that the said income fell under the specific head mentioned in S. 9 of the Act. This case also does not lay down that the income from the shops is not the income in the business. In Commr. of Income-tax, Madras v. Express Newspapers Ltd., (1964) 53 ITR 250 at p. 260 : (AIR 1965 SC 38 at p. 39) this Court held that both S. 26 (2) and the proviso thereto dealt only with profits and gains of a business profession or vocation and they did not provide for the assessment of income under any other head, e.g., capital gains. The reason for that conclusion is stated thus:"In (the deeming clause in S. 12B) only introduced a limited fiction, namely, that capital gains accrued will be deemed to be income of the previous year in which the sale was effected. The fiction does not make them the profits or gains of the business. It is well settled that a legal fiction is limited to the purpose for which it is created and should not be extended beyond its legitimate field. . . .. .The profits and gains of business and capital gains are two distinct concepts in the Income-tax Act: the former arises from the activity which is called business and the latter accrues because capital assets are disposed of at a value higher than what they cost the assessee. They are placed under different heads; they are derived from different sources; and the income is computed under different methods. The fact that the capital gains are connected with the capital assets of the business cannot make them the profit of the business. They are only deemed to be income of the previous year and not the profits or gains arising from the business during that year."It will be seen that the reason for the conclusion was that capital gains were not income from the business. Though some observations divorced from content may appear to be wide, the said decision was mainly based upon the character of the capital gains and not upon their non-inclusion under the heading "business". The limited scope of the earlier decision was explained by this Court in Commr. of Income-tax, Bombay City I v. Chugandas and Co., (1965) 55 ITR 17 at p. 24: (AIR 1965 SC 568 at p. 572). Therein this Court held that interest from securities formed part of the assessees business income for the purpose of exemption under S. 25(3) Shah J. speaking for the Court, observed:"The heads described in S. 6 and further elaborated for the purpose of computation of income in sections 7 to 10 and 12, 12A, 12AA and 12B are intended merely to indicate the classes of income; the heads do not exhaustively delimit sources from which income arises. This is made clear in the judgment of this Court in the United Commercial Bank Ltds case, 1958 SCR 79: ((S) AIR 1957 SC 918 ), that business income is broken up under different heads only for the purposes of computation of the total income; by that break up the income does not cease to be income of the business, the different heads of income being only the classification prescribed by the Indian Income-tax Act for computation of income."The same principle applies to the present case8. We, therefore, hold that under S. 24(2) of the Act the income from the securities which formed part of the assessees trading assets was part of its income in the business and therefore, the loss incurred in the business in the earlier year could be set off against that income also in the succeeding years.
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M/S. Innoventive Industries Ltd Vs. Icici Bank | be noticed that whereas the moratorium imposed under the Maharashtra Act is discretionary and may relate to one or more of the matters contained in Section 4(1), the moratorium imposed under the Code relates to all matters listed in Section 14 and follows as a matter of course. In the present case it is clear, therefore, that unless the Maharashtra Act is out of the way, the Parliamentary enactment will be hindered and obstructed in such a manner that it will not be possible to go ahead with the insolvency resolution process outlined in the Code. Further, the non-obstante clause contained in Section 4 of the Maharashtra Act cannot possibly be held to apply to the Central enactment, inasmuch as a matter of constitutional law, the later Central enactment being repugnant to the earlier State enactment by virtue of Article 254 (1), would operate to render the Maharashtra Act void vis-a-vis action taken under the later Central enactment. Also, Section 238 of the Code reads as under: Sec. 238. Provisions of this Code to override other laws.- The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. It is clear that the later non-obstante clause of the Parliamentary enactment will also prevail over the limited non-obstante clause contained in Section 4 of the Maharashtra Act. For these reasons, we are of the view that the Maharashtra Act cannot stand in the way of the corporate insolvency resolution process under the Code. 56. Dr. Singhvi, however, argued that the notification under the Maharashtra Act only kept in temporary abeyance the debt which would become due the moment the notification under the said Act ceases to have effect. We are afraid that we cannot accede to this contention. The notification under the Maharashtra Act continues for one year at a time and can go upto 15 years. Given the fact that the timeframe within which the company is either to be put back on its feet or is to go into liquidation is only 6 months, it is obvious that the period of one year or more of suspension of liability would completely unsettle the scheme of the Code and the object with which it was enacted, namely, to bring defaulter companies back to the commercial fold or otherwise face liquidation. If the moratorium imposed by the Maharashtra Act were to continue from one year upto 15 years, the whole scheme and object of the Code would be set at naught. Undeterred by this, Dr. Singhvi, however, argued that since the suspension of the debt took place from July, 2015 onwards, the appellant had a vested right which could not be interfered with by the Code. It is precisely for this reason that the non-obstante clause, in the widest terms possible, is contained in Section 238 of the Code, so that any right of the corporate debtor under any other law cannot come in the way of the Code. For all these reasons, we are of the view that the Tribunal was correct in appreciating that there would be repugnancy between the provisions of the two enactments. The judgment of the Appellate Tribunal is not correct on this score because repugnancy does exist in fact. 57. Both the Tribunal and the Appellate Tribunal refused to go into the other contentions of Dr. Singhvi, viz. that under the MRA, it was because the creditors did not disburse the amounts thereunder that the appellant was not able to pay its dues. We are of the view that the Tribunal and the Appellate Tribunal were right in not going into this contention for the very good reason that the period of 14 days within which the application is to be decided was long over by the time the second application was made before the Tribunal. Also, the second application clearly appears to be an after-thought for the reason that the corporate debtor was fully aware of the fact that the MRA had failed and could easily have pointed out these facts in the first application itself. However, for reasons best known to it, the appellant chose to take up only a law point before the Tribunal. The law point before the Tribunal was argued on 22nd and 23rd December, 2016, presumably with little success. It is only as an after-thought that the second application was then filed to add an additional string to a bow which appeared to the appellants to have already been broken. 58. Even otherwise, Shri Salve took us through the MRA in great detail. Dr. Singhvi did likewise to buttress his point of view that having promised to infuse funds into the appellant, not a single naya paisa was ever disbursed. According to us, one particular clause in the MRA is determinative on the merits of this case, even if we were to go into the same. Under Article V entitled Representations and Warranties, clause 20(t) states as follows: (t) NATURE OF OBLIGATIONS. The obligations under this Agreement and the other Restructuring Documents constitute direct, unconditional and general obligations of the Borrower and the Reconstituted Facilities, rank at least pari passu as to priority of payment to all other unsubordinated indebtedness of the Borrower other than any priority established under applicable law. 59. The obligation of the corporate debtor was, therefore, unconditional and did not depend upon infusing of funds by the creditors into the appellant company. Also, the argument taken for the first time before us that no debt was in fact due under the MRA as it has not fallen due (owing to the default of the secured creditor) is not something that can be countenanced at this stage of the proceedings. In this view of the matter, we are of the considered view that the Tribunal and the Appellate Tribunal were right in admitting the application filed by the financial creditor ICICI Bank Ltd. | 0[ds]11. Having heard learned counsel for both the parties, we find substance in the plea taken by Shri Salve that the present appeal at the behest of the erstwhile directors of the appellant is not maintainable. Dr. Singhvi stated that this is a technical point and he could move an application to amend the cause title stating that the erstwhile directors do not represent the company, but are filing the appeal as persons aggrieved by the impugned order as their management right of the company has been taken away and as they are otherwise affected as shareholders of the company. According to us, once an insolvency professional is appointed to manage the company, the erstwhile directors who are no longer in management, obviously cannot maintain an appeal on behalf of the company. In the present case, the company is the sole appellant. This being the case, the present appeal is obviously not maintainable. However, we are not inclined to dismiss the appeal on this score alone. Having heard both the learned counsel at some length, and because this is the very first application that has been moved under the Code, we thought it necessary to deliver a detailed judgment so that all Courts and Tribunals may take notice of a paradigm shift in the law. Entrenched managements are no longer allowed to continue in management if they cannot pay their debts17. The stage is now set for anh examination of Part II of the Code, with which we are immediately concerned in this case30. On the other hand, as we have seen, in the case of a corporate debtor who commits a default of a financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is due i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and not otherwise34. On the facts of the present case, we find that in answer to the application made under Section 7 of the Code, the appellant only raised the plea of suspension of its debt under the Maharashtra Act, which, therefore, was that no debt was due in law. The adjudicating authority correctly referred to thee clause in Section 238 and arrived at a conclusion that a notification under the Maharashtra Act would not stand in the way of the corporate insolvency resolution process under the CodeWe fail to comprehend the basis for the submission put forward on behalf of the appellants that there is repugnancy between. (3) of s. 5 of the Act which is relatable to Entry 54 of List II of the Seventh Schedule and paragraph 21 of the Control order issued by the Central Government under. (1) of s. 3 of the Essential Commodities Act relatable to Entry 33 of List III and therefore. (3) of s. 5 of the Act which is a law made by the State Legislature is void under Art. 254(1). The question of repugnancy under Art. 254(1) between a law made by Parliament and a law made by the State Legislature arises only in case both the legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List, and there is direct conflict between the two laws. It is only when both these requirements are fulfilled that the State law will, to the extent of repugnancy become void. Art. 254(1) has no application to cases of repugnancy due to overlapping found between List II on the one hand and List I and List III on the other. If such overlapping exists in any particular case, the State law will be ultra vires because of thee clause in Art. 246(1) read with the opening words Subject to in Art. 246(3). In such a case, the State law will fail not because of repugnance to the Union law but due to want of legislative competence. It is no doubt true that the expression a law made by Parliament which Parliament is competent to enact in Art. 254(1) is susceptible of a construction that repugnance between a State law and a law made by Parliament may take place outside the concurrent sphere because Parliament is competent to enact law with respect to subjects included in List III as well as List I. But if Art. 254(1) is read as a whole, it will be seen that it is expressly made subject to cl. (2) which makes reference to repugnancy in the field of Concurrentn other words, if cl. (2) is to be the guide in the determination of scope of cl. (1), the repugnancy between Union and State law must be taken to refer only to the Concurrent field. Art. 254(1) speaks of a State law being repugnant to (a) a law made by Parliament or (b) an existing lawThere was a controversy at one time as to whether the succeeding words with respect to one of the matters enumerated in the Concurrent List govern both (a) and (b) or (b) alone. It is now settled that the words with respect to qualify both the clauses in Art. 254(1) viz. a law made by Parliament which Parliament is competent to enact as well as any provision of an existing law. The under lying principle is that the question of repugnancy arises only when both the Legislatures are competent to legislate in the same field i.e. with respect to one of the matters enumerated in the Concurrent List. Hence, Art. 254(1) can not apply unless both the Union and the State laws relate to a subject specified in the Concurrent List, and they occupy the same field49. It will be noticed that the Constitution Bench judgment in Rajiv Sarin (supra) does not at all refer to Tika Ramji (supra). Tika Ramji (supra) had clearly held that the doctrine of pith and substance cannot be referred to in determining questions of repugnancy, once it is found that both the Parliamentary law and State law are referable to the Concurrent List. Therefore, the statement in paragraph 53 in Rajiv Sarin (supra), that the doctrine of pith and substance has utility in finding out whether, in substance, the two laws operate and relate to the same matter, may not be a correct statement of the law in view of the unequivocal statement made in Tika Ramji (supra) by an earlier Constitution Bench decision. However, the following sentence is of great importance, which is, that the two laws, namely, the Parliamentary and the State legislation, do not need to find their origin in the same entry in List III so long as they deal, either as a whole or in part, with the same subject matter. This clarification of the law is important in that Ranganath Misra, J.s separate concurring opinion in Vijay Kumar Sharma (supra) seems to point to a different direction. However, Hoechst Pharmaceuticals (supra), also does not agree with this view and indicates that so long as the two laws are traceable to a matter in the Concurrent List and there is repugnancy, the State law will have to be yield to the Central law except if the State law is covered by Article 254(2)50. The case law referred to above, therefore, yields the following propositions:i) Repugnancy under Article 254 arises only if both the Parliamentary (or existing law) and the State law are referable to List III in the 7th Schedule to the Constitution of Indiaii) In order to determine whether the Parliamentary (or existing law) is referable to the Concurrent List and whether the State law is also referable to the Concurrent List, the doctrine of pith and substance must be applied in order to find out as to where in pith and substance the competing statutes as a whole fall. It is only if both fall, as a whole, within the Concurrent List, that repugnancy can be applied to determine as to whether one particular statute or part thereof has to give way to the otheriii) The question is what is the subject matter of the statutes in question and not as to which entry in List III the competing statutes are traceable, as the entries in List III are only fields of legislation; also, the language of Article 254 speaks of repugnancy not merely of a statute as a whole but also any provision thereofiv) Since there is a presumption in favour of the validity of statutes generally, the onus of showing that a statute is repugnant to another has to be on the party attacking its validity. It must not be forgotten that that every effort should be made to reconcile the competing statutes and construe them both so as to avoid repugnancycare should be taken to see whether the two do not really operate in different fields qua different subject mattersv) Repugnancy must exist in fact and not depend upon a mere possibilityvi) Repugnancy may be direct in the sense that there is inconsistency in the actual terms of the competing statutes and there is, therefore, a direct conflict between two or more provisions of the competing statutes. In this sense, the inconsistency must be clear and direct and be of such a nature as to bring the two Acts or parts thereof into direct collision with each other, reaching a situation where it is impossible to obey the one without disobeying the other. This happens when two enactments produce different legal results when applied to the same factsvii) Though there may be no direct conflict, a State law may be inoperative because the Parliamentary law is intended to be a complete, exhaustive or exclusive code. In such a case, the State law is inconsistent and repugnant, even though obedience to both laws is possible, because so long as the State law is referable to the same subject matter as the Parliamentary law to any extent, it must give way. One test of seeing whether the subject matter of the Parliamentary law is encroached upon is to find out whether the Parliamentary statute has adopted a plan or scheme which will be hindered and/or obstructed by giving effect to the State law. It can then be said that the State law trenches upon the Parliamentary statute. Negatively put, where Parliamentary legislation does not purport to be exhaustive or unqualified, but itself permits or recognises other laws restricting or qualifying the general provisions made in it, there can be said to be no repugnancyviii) A conflict may arise when Parliamentary law and State law seek to exercise their powers over the same subject matter. This need not be in the form of a direct conflict, where one says do and the other says dont. Laws under this head are repugnant even if the rule of conduct prescribed by both laws is identical. The test that has been applied in such cases is based on the principle on which the rule of implied repeal rests, namely, that if the subject matter of the State legislation or part thereof is identical with that of the Parliamentary legislation, so that they cannot both stand together, then the State legislation will be said to be repugnant to the Parliamentary legislation. However, if the State legislation or part thereof deals not with the matters which formed the subject matter of Parliamentary legislation but with other and distinct matters though of a cognate and allied nature, there is no repugnancyix) Repugnant legislation by the State is void only to the extent of the repugnancy. In other words, only that portion of the States statute which is found to be repugnant is to be declared voidx) The only exception to the above is when it is found that a State legislation is repugnant to Parliamentary legislation or an existing law if the case falls within Article 254(2), and Presidential assent is received for State legislation, in which case State legislation prevails over Parliamentary legislation or an existing law within that State. Here again, the State law must give way to any subsequent Parliamentary law which adds to, amends, varies or repeals the law made by the legislature of the State, by virtue of the operation of Article 254(2) proviso51. Applying the aforesaid rules to the facts of the present case, we find that the State statute in question is the Maharashtra Act54. On reading its provisions, the moment initiation of the corporate insolvency resolution process takes place, a moratorium is announced by the adjudicating authority vide Sections 13 and 14 of the Code, by which institution of suits and pending proceedings etc. cannot be proceeded with. This continues until the approval of a resolution plan under Section 31 of the said Code. In the interim, an interim resolution professional is appointed under Section 16 to manage the affairs of corporate debtors under Section 1755. It is clear, therefore, that the earlier State law is repugnant to the later Parliamentary enactment as under the said State law, the State Government may take over the management of the relief undertaking, after which a temporary moratorium in much the same manner as that contained in Sections 13 and 14 of the Code takes place under Section 4 of the Maharashtra Act. There is no doubt that by giving effect to the State law, the aforesaid plan or scheme which may be adopted under the Parliamentary statute will directly be hindered and/or obstructed to that extent in that the management of the relief undertaking, which, if taken over by the State Government, would directly impede or come in the way of the taking over of the management of the corporate body by the interim resolution professional. Also, the moratorium imposed under Section 4 of the Maharashtra Act would directly clash with the moratorium to be issued under Sections 13 and 14 of the Code. It will be noticed that whereas the moratorium imposed under the Maharashtra Act is discretionary and may relate to one or more of the matters contained in Section 4(1), the moratorium imposed under the Code relates to all matters listed in Section 14 and follows as a matter of course. In the present case it is clear, therefore, that unless the Maharashtra Act is out of the way, the Parliamentary enactment will be hindered and obstructed in such a manner that it will not be possible to go ahead with the insolvency resolution process outlined in the Code. Further, thee clause contained in Section 4 of the Maharashtra Act cannot possibly be held to apply to the Central enactment, inasmuch as a matter of constitutional law, the later Central enactment being repugnant to the earlier State enactment by virtue of Article 254 (1), would operate to render the Maharashtra Act voids action taken under the later Central enactment. AlsoIt is clear that the latere clause of the Parliamentary enactment will also prevail over the limitede clause contained in Section 4 of the Maharashtra Act. For these reasons, we are of the view that the Maharashtra Act cannot stand in the way of the corporate insolvency resolution process under the CodeWe are afraid that we cannot accede to this contention. The notification under the Maharashtra Act continues for one year at a time and can go upto 15 years. Given the fact that the timeframe within which the company is either to be put back on its feet or is to go into liquidation is only 6 months, it is obvious that the period of one year or more of suspension of liability would completely unsettle the scheme of the Code and the object with which it was enacted, namely, to bring defaulter companies back to the commercial fold or otherwise face liquidation. If the moratorium imposed by the Maharashtra Act were to continue from one year upto 15 years, the whole scheme and object of the Code would be set at naughtIt is precisely for this reason that thee clause, in the widest terms possible, is contained in Section 238 of the Code, so that any right of the corporate debtor under any other law cannot come in the way of the Code. For all these reasons, we are of the view that the Tribunal was correct in appreciating that there would be repugnancy between the provisions of the two enactments. The judgment of the Appellate Tribunal is not correct on this score because repugnancy does exist in factWe are afraid that we cannot accede to this contention. The notification under the Maharashtra Act continues for one year at a time and can go upto 15 years. Given the fact that the timeframe within which the company is either to be put back on its feet or is to go into liquidation is only 6 months, it is obvious that the period of one year or more of suspension of liability would completely unsettle the scheme of the Code and the object with which it was enacted, namely, to bring defaulter companies back to the commercial fold or otherwise face liquidation. If the moratorium imposed by the Maharashtra Act were to continue from one year upto 15 years, the whole scheme and object of the Code would be set atd by this, Dr. Singhvi, however, argued that since the suspension of the debt took place from July, 2015 onwards, the appellant had a vested right which could not be interfered with by the Code.It is precisely for this reason that thee clause, in the widest terms possible, is contained in Section 238 of the Code, so that any right of the corporate debtor under any other law cannot come in the way of the Code. For all these reasons, we are of the view that the Tribunal was correct in appreciating that there would be repugnancy between the provisions of the two enactments. The judgment of the Appellate Tribunal is not correct on this score because repugnancy does exist in fact57. Both the Tribunal and the Appellate Tribunal refused to go into the other contentions of Dr. Singhvi, viz. that under the MRA, it was because the creditors did not disburse the amounts thereunder that the appellant was not able to pay its dues. We are of the view that the Tribunal and the Appellate Tribunal were right in not going into this contention for the very good reason that the period of 14 days within which the application is to be decided was long over by the time the second application was made before the Tribunal. Also, the second application clearly appears to be ant for the reason that the corporate debtor was fully aware of the fact that the MRA had failed and could easily have pointed out these facts in the first application itself. However, for reasons best known to it, the appellant chose to take up only a law point before the Tribunal. The law point before the Tribunal was argued on 22nd and 23rd December, 2016, presumably with little success. It is only as ant that the second application was then filed to add an additional string to a bow which appeared to the appellants to have already been broken59. The obligation of the corporate debtor was, therefore, unconditional and did not depend upon infusing of funds by the creditors into the appellant company. Also, the argument taken for the first time before us that no debt was in fact due under the MRA as it has not fallen due (owing to the default of the secured creditor) is not something that can be countenanced at this stage of the proceedings. In this view of the matter, we are of the considered view that the Tribunal and the Appellate Tribunal were right in admitting the application filed by the financial creditor ICICI Bank Ltd. | 0 | 26,187 | 3,698 | ### Instruction:
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be noticed that whereas the moratorium imposed under the Maharashtra Act is discretionary and may relate to one or more of the matters contained in Section 4(1), the moratorium imposed under the Code relates to all matters listed in Section 14 and follows as a matter of course. In the present case it is clear, therefore, that unless the Maharashtra Act is out of the way, the Parliamentary enactment will be hindered and obstructed in such a manner that it will not be possible to go ahead with the insolvency resolution process outlined in the Code. Further, the non-obstante clause contained in Section 4 of the Maharashtra Act cannot possibly be held to apply to the Central enactment, inasmuch as a matter of constitutional law, the later Central enactment being repugnant to the earlier State enactment by virtue of Article 254 (1), would operate to render the Maharashtra Act void vis-a-vis action taken under the later Central enactment. Also, Section 238 of the Code reads as under: Sec. 238. Provisions of this Code to override other laws.- The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. It is clear that the later non-obstante clause of the Parliamentary enactment will also prevail over the limited non-obstante clause contained in Section 4 of the Maharashtra Act. For these reasons, we are of the view that the Maharashtra Act cannot stand in the way of the corporate insolvency resolution process under the Code. 56. Dr. Singhvi, however, argued that the notification under the Maharashtra Act only kept in temporary abeyance the debt which would become due the moment the notification under the said Act ceases to have effect. We are afraid that we cannot accede to this contention. The notification under the Maharashtra Act continues for one year at a time and can go upto 15 years. Given the fact that the timeframe within which the company is either to be put back on its feet or is to go into liquidation is only 6 months, it is obvious that the period of one year or more of suspension of liability would completely unsettle the scheme of the Code and the object with which it was enacted, namely, to bring defaulter companies back to the commercial fold or otherwise face liquidation. If the moratorium imposed by the Maharashtra Act were to continue from one year upto 15 years, the whole scheme and object of the Code would be set at naught. Undeterred by this, Dr. Singhvi, however, argued that since the suspension of the debt took place from July, 2015 onwards, the appellant had a vested right which could not be interfered with by the Code. It is precisely for this reason that the non-obstante clause, in the widest terms possible, is contained in Section 238 of the Code, so that any right of the corporate debtor under any other law cannot come in the way of the Code. For all these reasons, we are of the view that the Tribunal was correct in appreciating that there would be repugnancy between the provisions of the two enactments. The judgment of the Appellate Tribunal is not correct on this score because repugnancy does exist in fact. 57. Both the Tribunal and the Appellate Tribunal refused to go into the other contentions of Dr. Singhvi, viz. that under the MRA, it was because the creditors did not disburse the amounts thereunder that the appellant was not able to pay its dues. We are of the view that the Tribunal and the Appellate Tribunal were right in not going into this contention for the very good reason that the period of 14 days within which the application is to be decided was long over by the time the second application was made before the Tribunal. Also, the second application clearly appears to be an after-thought for the reason that the corporate debtor was fully aware of the fact that the MRA had failed and could easily have pointed out these facts in the first application itself. However, for reasons best known to it, the appellant chose to take up only a law point before the Tribunal. The law point before the Tribunal was argued on 22nd and 23rd December, 2016, presumably with little success. It is only as an after-thought that the second application was then filed to add an additional string to a bow which appeared to the appellants to have already been broken. 58. Even otherwise, Shri Salve took us through the MRA in great detail. Dr. Singhvi did likewise to buttress his point of view that having promised to infuse funds into the appellant, not a single naya paisa was ever disbursed. According to us, one particular clause in the MRA is determinative on the merits of this case, even if we were to go into the same. Under Article V entitled Representations and Warranties, clause 20(t) states as follows: (t) NATURE OF OBLIGATIONS. The obligations under this Agreement and the other Restructuring Documents constitute direct, unconditional and general obligations of the Borrower and the Reconstituted Facilities, rank at least pari passu as to priority of payment to all other unsubordinated indebtedness of the Borrower other than any priority established under applicable law. 59. The obligation of the corporate debtor was, therefore, unconditional and did not depend upon infusing of funds by the creditors into the appellant company. Also, the argument taken for the first time before us that no debt was in fact due under the MRA as it has not fallen due (owing to the default of the secured creditor) is not something that can be countenanced at this stage of the proceedings. In this view of the matter, we are of the considered view that the Tribunal and the Appellate Tribunal were right in admitting the application filed by the financial creditor ICICI Bank Ltd.
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to be issued under Sections 13 and 14 of the Code. It will be noticed that whereas the moratorium imposed under the Maharashtra Act is discretionary and may relate to one or more of the matters contained in Section 4(1), the moratorium imposed under the Code relates to all matters listed in Section 14 and follows as a matter of course. In the present case it is clear, therefore, that unless the Maharashtra Act is out of the way, the Parliamentary enactment will be hindered and obstructed in such a manner that it will not be possible to go ahead with the insolvency resolution process outlined in the Code. Further, thee clause contained in Section 4 of the Maharashtra Act cannot possibly be held to apply to the Central enactment, inasmuch as a matter of constitutional law, the later Central enactment being repugnant to the earlier State enactment by virtue of Article 254 (1), would operate to render the Maharashtra Act voids action taken under the later Central enactment. AlsoIt is clear that the latere clause of the Parliamentary enactment will also prevail over the limitede clause contained in Section 4 of the Maharashtra Act. For these reasons, we are of the view that the Maharashtra Act cannot stand in the way of the corporate insolvency resolution process under the CodeWe are afraid that we cannot accede to this contention. The notification under the Maharashtra Act continues for one year at a time and can go upto 15 years. Given the fact that the timeframe within which the company is either to be put back on its feet or is to go into liquidation is only 6 months, it is obvious that the period of one year or more of suspension of liability would completely unsettle the scheme of the Code and the object with which it was enacted, namely, to bring defaulter companies back to the commercial fold or otherwise face liquidation. If the moratorium imposed by the Maharashtra Act were to continue from one year upto 15 years, the whole scheme and object of the Code would be set at naughtIt is precisely for this reason that thee clause, in the widest terms possible, is contained in Section 238 of the Code, so that any right of the corporate debtor under any other law cannot come in the way of the Code. For all these reasons, we are of the view that the Tribunal was correct in appreciating that there would be repugnancy between the provisions of the two enactments. The judgment of the Appellate Tribunal is not correct on this score because repugnancy does exist in factWe are afraid that we cannot accede to this contention. The notification under the Maharashtra Act continues for one year at a time and can go upto 15 years. Given the fact that the timeframe within which the company is either to be put back on its feet or is to go into liquidation is only 6 months, it is obvious that the period of one year or more of suspension of liability would completely unsettle the scheme of the Code and the object with which it was enacted, namely, to bring defaulter companies back to the commercial fold or otherwise face liquidation. If the moratorium imposed by the Maharashtra Act were to continue from one year upto 15 years, the whole scheme and object of the Code would be set atd by this, Dr. Singhvi, however, argued that since the suspension of the debt took place from July, 2015 onwards, the appellant had a vested right which could not be interfered with by the Code.It is precisely for this reason that thee clause, in the widest terms possible, is contained in Section 238 of the Code, so that any right of the corporate debtor under any other law cannot come in the way of the Code. For all these reasons, we are of the view that the Tribunal was correct in appreciating that there would be repugnancy between the provisions of the two enactments. The judgment of the Appellate Tribunal is not correct on this score because repugnancy does exist in fact57. Both the Tribunal and the Appellate Tribunal refused to go into the other contentions of Dr. Singhvi, viz. that under the MRA, it was because the creditors did not disburse the amounts thereunder that the appellant was not able to pay its dues. We are of the view that the Tribunal and the Appellate Tribunal were right in not going into this contention for the very good reason that the period of 14 days within which the application is to be decided was long over by the time the second application was made before the Tribunal. Also, the second application clearly appears to be ant for the reason that the corporate debtor was fully aware of the fact that the MRA had failed and could easily have pointed out these facts in the first application itself. However, for reasons best known to it, the appellant chose to take up only a law point before the Tribunal. The law point before the Tribunal was argued on 22nd and 23rd December, 2016, presumably with little success. It is only as ant that the second application was then filed to add an additional string to a bow which appeared to the appellants to have already been broken59. The obligation of the corporate debtor was, therefore, unconditional and did not depend upon infusing of funds by the creditors into the appellant company. Also, the argument taken for the first time before us that no debt was in fact due under the MRA as it has not fallen due (owing to the default of the secured creditor) is not something that can be countenanced at this stage of the proceedings. In this view of the matter, we are of the considered view that the Tribunal and the Appellate Tribunal were right in admitting the application filed by the financial creditor ICICI Bank Ltd.
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Shrishailagouda and Others Etc Vs. Gurusangappa Ramasomappa Desai and Another | prescribed authority for regrant of the aforesaid watan lands to them under section 4 of the Act. The Assistant Commissioner, Jamkhandi, held that the respondent was the holder of the watan and as such was entitled to an order of regrant. On appeal preferred by the appellants the Deputy Commissioner, Bijapur, affirmed the order of the Assistant Commissioner. The Divisional Commissioner, Belgaum, dismissed the appeal against the order of the Deputy Commissioner filed by the appellants. The Mysore Revenue Appellate Tribunal. Belgaum Bench, allowed the revision application made by the appellants setting aside the order of regrant in favour of the respondent. The High Court of Mysore at Bangalore allowed the writ petitions made by the respondent challenging the order of the Revenue Tribunal and restored the order of regrant in his favour.8. On the facts found by the authorities under the 1950 Act except the Revenue Tribunal, the respondent would be clearly entitled to the watan lands being regranted to hi m under section 4 of the Act. All the authorities including the Revenue Tribunal held that the appellants were strangers to the watan and therefore could not ask for an order under section 4 in their favour; the appellants not having challenged this finding it has become final. The Revenue Tribunal however was of the view that under the Sanad issued in favour of the respondents ancestor what was granted was only the royal share of the revenue, it was not a grant of the soil, and that a s such the lands in question could not be regranted to the respondent under section 4. The facts stated earlier make it clear that the Sanad was granted on the basis that there was a watan and that the respondents ancestor Bhimrao to whom the San ad was granted was the holder of the watan. The Sanad of 1872 granted only the right to hold the watan lands free from full assessment. The view taken by the Revenue Tribunal appears to be based on a judgment of the Bombay High Court, Ramasomappa Bhimrao Desai v. The Secretary of State for India in Council.(1) disposing of an appeal that arose from a suit instituted in 1929 by the respondents father Ramasomappa against the Secretary of State for India in-Council in 1929. According to the Tribunal the Bombay High Court had held in that case that the grant to the respondents ancestor did not include the right to the soil. It may be necessary here to state a few facts upon which Ramasomappas suit was instituted. Bhimrao to whom the Sanad was given adopted Ramasomappa in 1909. After Bhimraos death in 1918. Government refused to recognise Ramasomappas adoption. He then applied to Government for the grant of ex post facto sanction to his adoption by Bhimrao and, alternatively, prayed that in case the sanction was not given, then the watan might be resumed by the levy of full assessment on the lands and he should not be evicted therefrom. Both these requests were turned down and the Government passed orders for resuming possession of the lands. Ramasomappa then brought the suit against the Secretary of State for a declaration that the orders passed by Government for resumption of possession of the watan lands were illegal . The trial court having dismissed the suit Ramasomappa came up in appeal to the Bombay High Court. The question whether the original grant to the respondents ancestor was of the soil or it was only a right to the royal share of the revenue d id not arise for consideration in Ramasomappa v. Secretary of State (supra). The Bombay High Court allowed Ramasomappas appeal holding that the Sanad of 1872 did not purport to be a grant of the right to occupy the soil, it had only reference to and w as a grant of the right to hold the lands free from full assessment, and that if any of the conditions of the grant, namely the condition of remaining faithful to Government or the condition of paying a fixed duty was broken, then Government was only entitled to claim full assessment on the lands but any right of occupation which the holder of the watan possessed apart from the Sanad would remain untouched. The Tribunals reading of the judgment in Ramasomappas case does not therefore seem to be correct. The judgment under appeal before us points out that the decision in Ramasomappa v. Secretary of State (supra) has no bearing on the issue involved in the instant case.9. Counsel for the appellants also relied on the decision in 39 Bombay Law Reporter 851 in support of the appeal but, for the reasons stated above, we do not think Ramasomappas case at all helps him. The only other ground urged was that an application made on behalf of the respondent in 1947 (when he was a minor) under section 10 of the Bombay Hereditary Offices Act (Act III of 1874) having been rejected, the respondents right to a regrant of the watan lands was extinguished. Section 10 empowered the Collector to issue a certificate on the basis of which the respondent could bring an action against the appellants for recovery of possession of the lands. The point was argued before the Deputy Commissioner in the present proceedings who held that the rejection of the application d id not take away the right of the watandar to ask for a regrant of the watan lands under section 4 of the 1950 Act. From the judgment of the High Court it does not appear the point was argued there, and normally the appellants should not be all owed to take the point in this Court. In any case it seems to us clear that the rejection of the application under section 10 of the Bombay Hereditary Offices Act, 1874 is not a matter relevant to the issue whether the respondent is entitled to a re grant of the watan lands under section 4 of the 1950 Act.10. | 0[ds]The facts stated earlier make it clear that the Sanad was granted on the basis that there was a watan and that the respondents ancestor Bhimrao to whom the San ad was granted was the holder of the watan. The Sanad of 1872 granted only the right to hold the watan lands free from full assessment. The view taken by the Revenue Tribunal appears to be based on a judgment of the Bombay High Court, Ramasomappa Bhimrao Desai v. The Secretary of State for India in Council.(1) disposing of an appeal that arose from a suit instituted in 1929 by the respondents father Ramasomappa against the Secretary of State for India in-Council in 1929. According to the Tribunal the Bombay High Court had held in that case that the grant to the respondents ancestor did not include the right to the soil. It may be necessary here to state a few facts upon which Ramasomappas suit was instituted. Bhimrao to whom the Sanad was given adopted Ramasomappa in 1909. After Bhimraos death in 1918. Government refused to recognise Ramasomappas adoption. He then applied to Government for the grant of ex post facto sanction to his adoption by Bhimrao and, alternatively, prayed that in case the sanction was not given, then the watan might be resumed by the levy of full assessment on the lands and he should not be evicted therefrom. Both these requests were turned down and the Government passed orders for resuming possession of the lands. Ramasomappa then brought the suit against the Secretary of State for a declaration that the orders passed by Government for resumption of possession of the watan lands were illegal . The trial court having dismissed the suit Ramasomappa came up in appeal to the Bombay High Court. The question whether the original grant to the respondents ancestor was of the soil or it was only a right to the royal share of the revenue d id not arise for consideration in Ramasomappa v. Secretary of State (supra). The Bombay High Court allowed Ramasomappas appeal holding that the Sanad of 1872 did not purport to be a grant of the right to occupy the soil, it had only reference to and w as a grant of the right to hold the lands free from full assessment, and that if any of the conditions of the grant, namely the condition of remaining faithful to Government or the condition of paying a fixed duty was broken, then Government was only entitled to claim full assessment on the lands but any right of occupation which the holder of the watan possessed apart from the Sanad would remain untouched. The Tribunals reading of the judgment in Ramasomappas case does not therefore seem to be correct. The judgment under appeal before us points out that the decision in Ramasomappa v. Secretary of State (supra) has no bearing on the issue involved in the instantfor the appellants also relied on the decision in 39 Bombay Law Reporter 851 in support of the appeal but, for the reasons stated above, we do not think Ramasomappas case at all helps him. The only other ground urged was that an application made on behalf of the respondent in 1947 (when he was a minor) under section 10 of the Bombay Hereditary Offices Act (Act III of 1874) having been rejected, the respondents right to a regrant of the watan lands was extinguished. Section 10 empowered the Collector to issue a certificate on the basis of which the respondent could bring an action against the appellants for recovery of possession of the lands. The point was argued before the Deputy Commissioner in the present proceedings who held that the rejection of the application d id not take away the right of the watandar to ask for a regrant of the watan lands under section 4 of the 1950 Act. From the judgment of the High Court it does not appear the point was argued there, and normally the appellants should not be all owed to take the point in this Court. In any case it seems to us clear that the rejection of the application under section 10 ofthe Bombay Hereditary Offices Act,1874 is not a matter relevant to the issue whether the respondent is entitled to a re grant of the watan lands under section 4 of the 1950for the appellants also relied on the decision in 39 Bombay Law Reporter 851 in support of the appeal but, for the reasons stated above, we do not think Ramasomappas case at all helpsonly other ground urged was that an application made on behalf of the respondent in 1947 (when he was a minor) under section 10 of the Bombay Hereditary Offices Act (Act III of 1874) having been rejected, the respondents right to a regrant of the watan lands was extinguished. Section 10 empowered the Collector to issue a certificate on the basis of which the respondent could bring an action against the appellants for recovery of possession of the lands. The point was argued before the Deputy Commissioner in the present proceedings who held that the rejection of the application d id not take away the right of the watandar to ask for a regrant of the watan lands under section 4 of the 1950 Act. From the judgment of the High Court it does not appear the point was argued there, and normally the appellants should not be all owed to take the point in this Court. In any case it seems to us clear that the rejection of the application under section 10 ofthe Bombay Hereditary Offices Act,1874 is not a matter relevant to the issue whether the respondent is entitled to a re grant of the watan lands under section 4 of the 1950 | 0 | 2,275 | 1,024 | ### Instruction:
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prescribed authority for regrant of the aforesaid watan lands to them under section 4 of the Act. The Assistant Commissioner, Jamkhandi, held that the respondent was the holder of the watan and as such was entitled to an order of regrant. On appeal preferred by the appellants the Deputy Commissioner, Bijapur, affirmed the order of the Assistant Commissioner. The Divisional Commissioner, Belgaum, dismissed the appeal against the order of the Deputy Commissioner filed by the appellants. The Mysore Revenue Appellate Tribunal. Belgaum Bench, allowed the revision application made by the appellants setting aside the order of regrant in favour of the respondent. The High Court of Mysore at Bangalore allowed the writ petitions made by the respondent challenging the order of the Revenue Tribunal and restored the order of regrant in his favour.8. On the facts found by the authorities under the 1950 Act except the Revenue Tribunal, the respondent would be clearly entitled to the watan lands being regranted to hi m under section 4 of the Act. All the authorities including the Revenue Tribunal held that the appellants were strangers to the watan and therefore could not ask for an order under section 4 in their favour; the appellants not having challenged this finding it has become final. The Revenue Tribunal however was of the view that under the Sanad issued in favour of the respondents ancestor what was granted was only the royal share of the revenue, it was not a grant of the soil, and that a s such the lands in question could not be regranted to the respondent under section 4. The facts stated earlier make it clear that the Sanad was granted on the basis that there was a watan and that the respondents ancestor Bhimrao to whom the San ad was granted was the holder of the watan. The Sanad of 1872 granted only the right to hold the watan lands free from full assessment. The view taken by the Revenue Tribunal appears to be based on a judgment of the Bombay High Court, Ramasomappa Bhimrao Desai v. The Secretary of State for India in Council.(1) disposing of an appeal that arose from a suit instituted in 1929 by the respondents father Ramasomappa against the Secretary of State for India in-Council in 1929. According to the Tribunal the Bombay High Court had held in that case that the grant to the respondents ancestor did not include the right to the soil. It may be necessary here to state a few facts upon which Ramasomappas suit was instituted. Bhimrao to whom the Sanad was given adopted Ramasomappa in 1909. After Bhimraos death in 1918. Government refused to recognise Ramasomappas adoption. He then applied to Government for the grant of ex post facto sanction to his adoption by Bhimrao and, alternatively, prayed that in case the sanction was not given, then the watan might be resumed by the levy of full assessment on the lands and he should not be evicted therefrom. Both these requests were turned down and the Government passed orders for resuming possession of the lands. Ramasomappa then brought the suit against the Secretary of State for a declaration that the orders passed by Government for resumption of possession of the watan lands were illegal . The trial court having dismissed the suit Ramasomappa came up in appeal to the Bombay High Court. The question whether the original grant to the respondents ancestor was of the soil or it was only a right to the royal share of the revenue d id not arise for consideration in Ramasomappa v. Secretary of State (supra). The Bombay High Court allowed Ramasomappas appeal holding that the Sanad of 1872 did not purport to be a grant of the right to occupy the soil, it had only reference to and w as a grant of the right to hold the lands free from full assessment, and that if any of the conditions of the grant, namely the condition of remaining faithful to Government or the condition of paying a fixed duty was broken, then Government was only entitled to claim full assessment on the lands but any right of occupation which the holder of the watan possessed apart from the Sanad would remain untouched. The Tribunals reading of the judgment in Ramasomappas case does not therefore seem to be correct. The judgment under appeal before us points out that the decision in Ramasomappa v. Secretary of State (supra) has no bearing on the issue involved in the instant case.9. Counsel for the appellants also relied on the decision in 39 Bombay Law Reporter 851 in support of the appeal but, for the reasons stated above, we do not think Ramasomappas case at all helps him. The only other ground urged was that an application made on behalf of the respondent in 1947 (when he was a minor) under section 10 of the Bombay Hereditary Offices Act (Act III of 1874) having been rejected, the respondents right to a regrant of the watan lands was extinguished. Section 10 empowered the Collector to issue a certificate on the basis of which the respondent could bring an action against the appellants for recovery of possession of the lands. The point was argued before the Deputy Commissioner in the present proceedings who held that the rejection of the application d id not take away the right of the watandar to ask for a regrant of the watan lands under section 4 of the 1950 Act. From the judgment of the High Court it does not appear the point was argued there, and normally the appellants should not be all owed to take the point in this Court. In any case it seems to us clear that the rejection of the application under section 10 of the Bombay Hereditary Offices Act, 1874 is not a matter relevant to the issue whether the respondent is entitled to a re grant of the watan lands under section 4 of the 1950 Act.10.
### Response:
0
### Explanation:
The facts stated earlier make it clear that the Sanad was granted on the basis that there was a watan and that the respondents ancestor Bhimrao to whom the San ad was granted was the holder of the watan. The Sanad of 1872 granted only the right to hold the watan lands free from full assessment. The view taken by the Revenue Tribunal appears to be based on a judgment of the Bombay High Court, Ramasomappa Bhimrao Desai v. The Secretary of State for India in Council.(1) disposing of an appeal that arose from a suit instituted in 1929 by the respondents father Ramasomappa against the Secretary of State for India in-Council in 1929. According to the Tribunal the Bombay High Court had held in that case that the grant to the respondents ancestor did not include the right to the soil. It may be necessary here to state a few facts upon which Ramasomappas suit was instituted. Bhimrao to whom the Sanad was given adopted Ramasomappa in 1909. After Bhimraos death in 1918. Government refused to recognise Ramasomappas adoption. He then applied to Government for the grant of ex post facto sanction to his adoption by Bhimrao and, alternatively, prayed that in case the sanction was not given, then the watan might be resumed by the levy of full assessment on the lands and he should not be evicted therefrom. Both these requests were turned down and the Government passed orders for resuming possession of the lands. Ramasomappa then brought the suit against the Secretary of State for a declaration that the orders passed by Government for resumption of possession of the watan lands were illegal . The trial court having dismissed the suit Ramasomappa came up in appeal to the Bombay High Court. The question whether the original grant to the respondents ancestor was of the soil or it was only a right to the royal share of the revenue d id not arise for consideration in Ramasomappa v. Secretary of State (supra). The Bombay High Court allowed Ramasomappas appeal holding that the Sanad of 1872 did not purport to be a grant of the right to occupy the soil, it had only reference to and w as a grant of the right to hold the lands free from full assessment, and that if any of the conditions of the grant, namely the condition of remaining faithful to Government or the condition of paying a fixed duty was broken, then Government was only entitled to claim full assessment on the lands but any right of occupation which the holder of the watan possessed apart from the Sanad would remain untouched. The Tribunals reading of the judgment in Ramasomappas case does not therefore seem to be correct. The judgment under appeal before us points out that the decision in Ramasomappa v. Secretary of State (supra) has no bearing on the issue involved in the instantfor the appellants also relied on the decision in 39 Bombay Law Reporter 851 in support of the appeal but, for the reasons stated above, we do not think Ramasomappas case at all helps him. The only other ground urged was that an application made on behalf of the respondent in 1947 (when he was a minor) under section 10 of the Bombay Hereditary Offices Act (Act III of 1874) having been rejected, the respondents right to a regrant of the watan lands was extinguished. Section 10 empowered the Collector to issue a certificate on the basis of which the respondent could bring an action against the appellants for recovery of possession of the lands. The point was argued before the Deputy Commissioner in the present proceedings who held that the rejection of the application d id not take away the right of the watandar to ask for a regrant of the watan lands under section 4 of the 1950 Act. From the judgment of the High Court it does not appear the point was argued there, and normally the appellants should not be all owed to take the point in this Court. In any case it seems to us clear that the rejection of the application under section 10 ofthe Bombay Hereditary Offices Act,1874 is not a matter relevant to the issue whether the respondent is entitled to a re grant of the watan lands under section 4 of the 1950for the appellants also relied on the decision in 39 Bombay Law Reporter 851 in support of the appeal but, for the reasons stated above, we do not think Ramasomappas case at all helpsonly other ground urged was that an application made on behalf of the respondent in 1947 (when he was a minor) under section 10 of the Bombay Hereditary Offices Act (Act III of 1874) having been rejected, the respondents right to a regrant of the watan lands was extinguished. Section 10 empowered the Collector to issue a certificate on the basis of which the respondent could bring an action against the appellants for recovery of possession of the lands. The point was argued before the Deputy Commissioner in the present proceedings who held that the rejection of the application d id not take away the right of the watandar to ask for a regrant of the watan lands under section 4 of the 1950 Act. From the judgment of the High Court it does not appear the point was argued there, and normally the appellants should not be all owed to take the point in this Court. In any case it seems to us clear that the rejection of the application under section 10 ofthe Bombay Hereditary Offices Act,1874 is not a matter relevant to the issue whether the respondent is entitled to a re grant of the watan lands under section 4 of the 1950
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M/s. Jagdish Chand Radhey Shyam Vs. State of Punjab & Others | Constitution by reason of unregulated conferment of power.9. The High Court held that title would pass only when full price was paid and till then the Government remained the owner and could resume possession. The High Court held that Sections 8 and 9 of the 1952 Act were supplementary to each other and if recovery of the amount due as arrears of land revenue was provided for there could be resumption of the site.10. for the appellant repeated the contentions which had been made before the High Court.11. Broadly stated Section 3 of the 1952 Act indicates these features. The Government has power to sell by auction, allotment or otherwise any land or building. The consideration money is to be paid in such manner as the Government may prescribe. The unpaid portion of the consideration money will be a first charge on the site or the building. The transferee except with the previous permission in writing of the Estate Officer shall not be entitled to sell, mortgage or otherwise transfer any right, title or interest in the site or building until the amount which is a first charge has been paid in full. Section 3 totally repeals the conclusion arrived at by the High Court that the Government remains the owner until the entire consideration money is paid. A charge is created for the unpaid portion of the consideration money. The prohibition against sale, mortgage or transfer by the transfer by the transferee except with the previous permission of the Estate Officer of any right, title or interest in the site or building establishes the ownership and rights of the transferee. If the Government were the owner it could not be said that the transferee could sell, mortgage or transfer any right, title or interest. The statute speaks of payment of consideration money by sale to the transferee. The Government cannot after sale remain the owner. The statute forbids such construction. If the Government is the owner the Government cannot at the same time be entitled to a charge on the property for the balance of the consideration money. A charge on a property is under the Transfer of Property Act enforced by instituting a suit and bringing the property to sale. If the property yields a higher price than what the charge represents, the owner is entitled to the excess sum.12. Section 5 of the 1952 Act deals with imposition of penalty and mode of recovery of arrears. If there is any default in payment of consideration money or instalment or any other money due on account of transfer or if there is default in the payment of fee or tax levied the Estate Officer may direct a sum not exceeding that amount due to be recovered by way of penalty. The amount due together with the penalty may be recovered as an arrear of land revenue.13. Section 9 speaks of resumption of the site or building by the Estate Officer and forfeiture of the whole or part of the money paid on account of consideration in the case of non-payment of consideration money or instalment or breach of any condition of transfer or breach of any rule.14. Under the ordinary law of the land it is open to the Government to enforce the charge and to recover the due on consideration money, instalments or any other due from the transferee. It is also open to the Government under Section 8 of the Act to proceed against the transferee to realise the amount due on consideration money or on instalment or any other due as an arrear of land revenue. Section 8 provides penalty for default in payment of money and the recovery of the same as an arrear of land revenue. These remedies are deterrent and drastic.15. Section 9 of the 1952 Act empowers the Government to forfeit the whole or any part of the money in case of non-payment of consideration money or instalments or other dues for breach of covenants. Under the ordinary law of the land there is relief against forfeiture for breach of covenant or provisions. Section 9 does not offer any relief against forfeiture. This feature that the Government can proceed either under the ordinary law of the land or under the 1952 Act shows that there is discrimination. There is nothing in the statute to guide the exercise of power by the Government as to when and how one of the methods will be chosen.16. Section 9 confers power to resume the site. There is a charge on the land for the unpaid consideration money. This charge can be enforced by instituting a suit in a court of law. The owner will have the opportunity of paying the money and clearing the property of the charge. On the other hand when the Government proceeds under Section 9 of the Act, to resume the land or building the Government proceeds under the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959. There is no guidance in the Act, as to when the Government will resort to either of the remedies.17. Again in all these cases of recovery of money or resumption of land or building and forfeiture of monies paid the Government may choose and discriminate in proceeding against one person in one manner and another person in another manner.18. The Act creates a charge on the property. The Act forbids creation of a third party right by the transferee until the amount represented by the charge is paid in full. In the teeth of statutory security and enforceability it is totally unreasonable restriction on the enjoyment of property by resuming the site for defaults in payments of money and forfeiting the monies paid by the transferee.19. For these reasons, we are of opinion that the Government is not entitled to forfeit the monies paid and resume the site under the provision contained in Section 9 of the 1952 Act. These provisions violate Articles 14 and 19(1)(f). These provisions are unconstitutional. | 1[ds]11. Broadly stated Section 3 of the 1952 Act indicates these features. The Government has power to sell by auction, allotment or otherwise any land or building. The consideration money is to be paid in such manner as the Government may prescribe. The unpaid portion of the consideration money will be a first charge on the site or the building. The transferee except with the previous permission in writing of the Estate Officer shall not be entitled to sell, mortgage or otherwise transfer any right, title or interest in the site or building until the amount which is a first charge has been paid in full. Section 3 totally repeals the conclusion arrived at by the High Court that the Government remains the owner until the entire consideration money is paid. A charge is created for the unpaid portion of the consideration money. The prohibition against sale, mortgage or transfer by the transfer by the transferee except with the previous permission of the Estate Officer of any right, title or interest in the site or building establishes the ownership and rights of the transferee. If the Government were the owner it could not be said that the transferee could sell, mortgage or transfer any right, title or interest. The statute speaks of payment of consideration money by sale to the transferee. The Government cannot after sale remain the owner. The statute forbids such construction. If the Government is the owner the Government cannot at the same time be entitled to a charge on the property for the balance of the consideration money. A charge on a property is under the Transfer of Property Act enforced by instituting a suit and bringing the property to sale. If the property yields a higher price than what the charge represents, the owner is entitled to the excess sum.Under the ordinary law of the land it is open to the Government to enforce the charge and to recover the due on consideration money, instalments or any other due from the transferee. It is also open to the Government under Section 8 of the Act to proceed against the transferee to realise the amount due on consideration money or on instalment or any other due as an arrear of land revenue. Section 8 provides penalty for default in payment of money and the recovery of the same as an arrear of land revenue. These remedies are deterrent and drastic.Again in all these cases of recovery of money or resumption of land or building and forfeiture of monies paid the Government may choose and discriminate in proceeding against one person in one manner and another person in another manner.18. The Act creates a charge on the property. The Act forbids creation of a third party right by the transferee until the amount represented by the charge is paid in full. In the teeth of statutory security and enforceability it is totally unreasonable restriction on the enjoyment of property by resuming the site for defaults in payments of money and forfeiting the monies paid by the transferee.19. For these reasons, we are of opinion that the Government is not entitled to forfeit the monies paid and resume the site under the provision contained in Section 9 of the 1952 Act. These provisions violate Articles 14 and 19(1)(f). These provisions are unconstitutional. | 1 | 1,818 | 601 | ### 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:
Constitution by reason of unregulated conferment of power.9. The High Court held that title would pass only when full price was paid and till then the Government remained the owner and could resume possession. The High Court held that Sections 8 and 9 of the 1952 Act were supplementary to each other and if recovery of the amount due as arrears of land revenue was provided for there could be resumption of the site.10. for the appellant repeated the contentions which had been made before the High Court.11. Broadly stated Section 3 of the 1952 Act indicates these features. The Government has power to sell by auction, allotment or otherwise any land or building. The consideration money is to be paid in such manner as the Government may prescribe. The unpaid portion of the consideration money will be a first charge on the site or the building. The transferee except with the previous permission in writing of the Estate Officer shall not be entitled to sell, mortgage or otherwise transfer any right, title or interest in the site or building until the amount which is a first charge has been paid in full. Section 3 totally repeals the conclusion arrived at by the High Court that the Government remains the owner until the entire consideration money is paid. A charge is created for the unpaid portion of the consideration money. The prohibition against sale, mortgage or transfer by the transfer by the transferee except with the previous permission of the Estate Officer of any right, title or interest in the site or building establishes the ownership and rights of the transferee. If the Government were the owner it could not be said that the transferee could sell, mortgage or transfer any right, title or interest. The statute speaks of payment of consideration money by sale to the transferee. The Government cannot after sale remain the owner. The statute forbids such construction. If the Government is the owner the Government cannot at the same time be entitled to a charge on the property for the balance of the consideration money. A charge on a property is under the Transfer of Property Act enforced by instituting a suit and bringing the property to sale. If the property yields a higher price than what the charge represents, the owner is entitled to the excess sum.12. Section 5 of the 1952 Act deals with imposition of penalty and mode of recovery of arrears. If there is any default in payment of consideration money or instalment or any other money due on account of transfer or if there is default in the payment of fee or tax levied the Estate Officer may direct a sum not exceeding that amount due to be recovered by way of penalty. The amount due together with the penalty may be recovered as an arrear of land revenue.13. Section 9 speaks of resumption of the site or building by the Estate Officer and forfeiture of the whole or part of the money paid on account of consideration in the case of non-payment of consideration money or instalment or breach of any condition of transfer or breach of any rule.14. Under the ordinary law of the land it is open to the Government to enforce the charge and to recover the due on consideration money, instalments or any other due from the transferee. It is also open to the Government under Section 8 of the Act to proceed against the transferee to realise the amount due on consideration money or on instalment or any other due as an arrear of land revenue. Section 8 provides penalty for default in payment of money and the recovery of the same as an arrear of land revenue. These remedies are deterrent and drastic.15. Section 9 of the 1952 Act empowers the Government to forfeit the whole or any part of the money in case of non-payment of consideration money or instalments or other dues for breach of covenants. Under the ordinary law of the land there is relief against forfeiture for breach of covenant or provisions. Section 9 does not offer any relief against forfeiture. This feature that the Government can proceed either under the ordinary law of the land or under the 1952 Act shows that there is discrimination. There is nothing in the statute to guide the exercise of power by the Government as to when and how one of the methods will be chosen.16. Section 9 confers power to resume the site. There is a charge on the land for the unpaid consideration money. This charge can be enforced by instituting a suit in a court of law. The owner will have the opportunity of paying the money and clearing the property of the charge. On the other hand when the Government proceeds under Section 9 of the Act, to resume the land or building the Government proceeds under the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959. There is no guidance in the Act, as to when the Government will resort to either of the remedies.17. Again in all these cases of recovery of money or resumption of land or building and forfeiture of monies paid the Government may choose and discriminate in proceeding against one person in one manner and another person in another manner.18. The Act creates a charge on the property. The Act forbids creation of a third party right by the transferee until the amount represented by the charge is paid in full. In the teeth of statutory security and enforceability it is totally unreasonable restriction on the enjoyment of property by resuming the site for defaults in payments of money and forfeiting the monies paid by the transferee.19. For these reasons, we are of opinion that the Government is not entitled to forfeit the monies paid and resume the site under the provision contained in Section 9 of the 1952 Act. These provisions violate Articles 14 and 19(1)(f). These provisions are unconstitutional.
### Response:
1
### Explanation:
11. Broadly stated Section 3 of the 1952 Act indicates these features. The Government has power to sell by auction, allotment or otherwise any land or building. The consideration money is to be paid in such manner as the Government may prescribe. The unpaid portion of the consideration money will be a first charge on the site or the building. The transferee except with the previous permission in writing of the Estate Officer shall not be entitled to sell, mortgage or otherwise transfer any right, title or interest in the site or building until the amount which is a first charge has been paid in full. Section 3 totally repeals the conclusion arrived at by the High Court that the Government remains the owner until the entire consideration money is paid. A charge is created for the unpaid portion of the consideration money. The prohibition against sale, mortgage or transfer by the transfer by the transferee except with the previous permission of the Estate Officer of any right, title or interest in the site or building establishes the ownership and rights of the transferee. If the Government were the owner it could not be said that the transferee could sell, mortgage or transfer any right, title or interest. The statute speaks of payment of consideration money by sale to the transferee. The Government cannot after sale remain the owner. The statute forbids such construction. If the Government is the owner the Government cannot at the same time be entitled to a charge on the property for the balance of the consideration money. A charge on a property is under the Transfer of Property Act enforced by instituting a suit and bringing the property to sale. If the property yields a higher price than what the charge represents, the owner is entitled to the excess sum.Under the ordinary law of the land it is open to the Government to enforce the charge and to recover the due on consideration money, instalments or any other due from the transferee. It is also open to the Government under Section 8 of the Act to proceed against the transferee to realise the amount due on consideration money or on instalment or any other due as an arrear of land revenue. Section 8 provides penalty for default in payment of money and the recovery of the same as an arrear of land revenue. These remedies are deterrent and drastic.Again in all these cases of recovery of money or resumption of land or building and forfeiture of monies paid the Government may choose and discriminate in proceeding against one person in one manner and another person in another manner.18. The Act creates a charge on the property. The Act forbids creation of a third party right by the transferee until the amount represented by the charge is paid in full. In the teeth of statutory security and enforceability it is totally unreasonable restriction on the enjoyment of property by resuming the site for defaults in payments of money and forfeiting the monies paid by the transferee.19. For these reasons, we are of opinion that the Government is not entitled to forfeit the monies paid and resume the site under the provision contained in Section 9 of the 1952 Act. These provisions violate Articles 14 and 19(1)(f). These provisions are unconstitutional.
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M.M. Shah Vs. The Deputy Director of Enforcement & Others | Director of a Company is not sufficient to make a person liable under Section 141 of the Negotiable Instruments Act. Paragraphs No.12, 13, 14 and 20 of the said Judgment are material and are reproduced herein under:12. While analysing Section 141 of the Act, it will be seen that it operates in cases where an offence under Section 138 is committed by a Company. The key words which occur in the Section are every person. These are general words and take every person connected with a company within their sweep. Therefore, these words have been rightly qualified by use of the words who at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence etc. What is required is that the persons who are sought to be made criminally liable under Section 141 should be at the time the offence was committed, in charge of and responsible to the company for the conduct of the business of the company. Every person connected with the company shall not fall within the ambit of the provision. It is only those persons who were in charge of and responsible for conduct of business of the company at the time of commission of an offence, who will be liable for criminal action. It follows from this that if a director of a Company who was not in charge of and was not responsible for the conduct of the business of the company at the relevant time, will not be liable under the provision . The liability arises from being in charge of and responsible for conduct of business of the company at the relevant time when the offence was committed and not on the basis of merely holding a designation or office in a company. Conversely, a person not holding any office or designation in a Company may be liable if he satisfied the main requirement of being in charge of and responsible for conduct of business of a Company at the relevant time. Liability depends on the role one plays in the affair of a company and not on designation or status. If being a Director or Manager or Secretary was enough to cast criminal liability, the Section would have said so. Instead of every person the section would have said every Director. Manager or Secretary in a Company is liable........ etc. The legislature is aware that it is a case of criminal liability which means serious consequences so far as the person sought to be made liable is concerned. Therefore, only persons who can be said to be connected with the commission of a crime at the relevant time have been subjected to action.13. A reference to subsection (2) of Section 141 fortifies the above reasoning because subsection (2) envisages direct involvement of any Director, Manager, Secretary or other officer of a company in commission of an offence. This section operates when in a trial it is proved that the offence has been committed with the consent or connivance or its attributable to neglect on the part of any of the holders of these officers in a company. In such a case, such persons are to be held liable. Provision has been made for Directors, Managers, Secretaries and other officers of a company to cover them in cases in their proved involvement.14. The conclusion is inevitable that the liability arises on account of conduct, act or omission on the part of a person and not merely on account of holding an office or a position in a company. Therefore, in order to bring a case within Section 141 of the Act the complaint must disclose the necessary facts which make a person liable.20. In view of the above discussion, our answers to the questions posed in the Reference are as under:(a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed the person accused was in charge of and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.(b) The answer to question posed in sub-para (b) has to be in negative. Merely, being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases.(c) The answer to question (c) has to be in affirmative. The question notes that the Managing Director or Joint Managing Director would be admittedly in charge of the company and responsible to the company for conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as Managing Director or Joint Managing Director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under subsection (2) of Section 141.9. In the light of the aforesaid, the above Appeal would have to be allowed and the question of law would have to be answered in favour of the Appellant and against the Department. | 1[ds]20. In view of the above discussion, our answers to the questions posed in the Reference are as under:(a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed the person accused was in charge of and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.(b) The answer to question posed in(b) has to be in negative. Merely, being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases.(c) The answer to question (c) has to be in affirmative. The question notes that the Managing Director or Joint Managing Director would be admittedly in charge of the company and responsible to the company for conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as Managing Director or Joint Managing Director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under subsection (2) of Section 141.In the light of the aforesaid, the above Appeal would have to be allowed and the question of law would have to be answered in favour of the Appellant and against the Department. | 1 | 3,494 | 404 | ### 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:
Director of a Company is not sufficient to make a person liable under Section 141 of the Negotiable Instruments Act. Paragraphs No.12, 13, 14 and 20 of the said Judgment are material and are reproduced herein under:12. While analysing Section 141 of the Act, it will be seen that it operates in cases where an offence under Section 138 is committed by a Company. The key words which occur in the Section are every person. These are general words and take every person connected with a company within their sweep. Therefore, these words have been rightly qualified by use of the words who at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence etc. What is required is that the persons who are sought to be made criminally liable under Section 141 should be at the time the offence was committed, in charge of and responsible to the company for the conduct of the business of the company. Every person connected with the company shall not fall within the ambit of the provision. It is only those persons who were in charge of and responsible for conduct of business of the company at the time of commission of an offence, who will be liable for criminal action. It follows from this that if a director of a Company who was not in charge of and was not responsible for the conduct of the business of the company at the relevant time, will not be liable under the provision . The liability arises from being in charge of and responsible for conduct of business of the company at the relevant time when the offence was committed and not on the basis of merely holding a designation or office in a company. Conversely, a person not holding any office or designation in a Company may be liable if he satisfied the main requirement of being in charge of and responsible for conduct of business of a Company at the relevant time. Liability depends on the role one plays in the affair of a company and not on designation or status. If being a Director or Manager or Secretary was enough to cast criminal liability, the Section would have said so. Instead of every person the section would have said every Director. Manager or Secretary in a Company is liable........ etc. The legislature is aware that it is a case of criminal liability which means serious consequences so far as the person sought to be made liable is concerned. Therefore, only persons who can be said to be connected with the commission of a crime at the relevant time have been subjected to action.13. A reference to subsection (2) of Section 141 fortifies the above reasoning because subsection (2) envisages direct involvement of any Director, Manager, Secretary or other officer of a company in commission of an offence. This section operates when in a trial it is proved that the offence has been committed with the consent or connivance or its attributable to neglect on the part of any of the holders of these officers in a company. In such a case, such persons are to be held liable. Provision has been made for Directors, Managers, Secretaries and other officers of a company to cover them in cases in their proved involvement.14. The conclusion is inevitable that the liability arises on account of conduct, act or omission on the part of a person and not merely on account of holding an office or a position in a company. Therefore, in order to bring a case within Section 141 of the Act the complaint must disclose the necessary facts which make a person liable.20. In view of the above discussion, our answers to the questions posed in the Reference are as under:(a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed the person accused was in charge of and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.(b) The answer to question posed in sub-para (b) has to be in negative. Merely, being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases.(c) The answer to question (c) has to be in affirmative. The question notes that the Managing Director or Joint Managing Director would be admittedly in charge of the company and responsible to the company for conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as Managing Director or Joint Managing Director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under subsection (2) of Section 141.9. In the light of the aforesaid, the above Appeal would have to be allowed and the question of law would have to be answered in favour of the Appellant and against the Department.
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20. In view of the above discussion, our answers to the questions posed in the Reference are as under:(a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed the person accused was in charge of and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.(b) The answer to question posed in(b) has to be in negative. Merely, being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases.(c) The answer to question (c) has to be in affirmative. The question notes that the Managing Director or Joint Managing Director would be admittedly in charge of the company and responsible to the company for conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as Managing Director or Joint Managing Director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under subsection (2) of Section 141.In the light of the aforesaid, the above Appeal would have to be allowed and the question of law would have to be answered in favour of the Appellant and against the Department.
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Infrastructure Leasing & Fin. Service Ltd Vs. Delklip Investment Private Ltd. & Others | 1. Leave granted. 2. This appeal has been preferred by appellant - Infrastructure Leasing & Fin. Service Ltd against the judgment and order dated 27th August, 2012 passed by the High Court of Karnataka at Bangalore in Criminal Appeal No.2226 of 2005(A). By the impugned judgment, the High Court while dismissing the appeal preferred by the appellant affirmed the order of acquittal dated 27 th September, 2005 passed by the 14th Chief Metropolitan Magistrate, Bangalore. The brief fact of the case is that the appellant company filed a complaint under Section 138 read with 141 of the Negotiable Instrument Act against the respondent No.1 - company and others. In the said case, the notice was issued to parties and after hearing the parties, the Court held that the limitation started from the date of the first notice and not from the second notice and the case being barred by limitation, the petition was dismissed and the accused were acquitted.3. Against the said judgment, the appellant preferred the appeal before the High Court wherein by impugned judgment dated 27th August, 2012, the High Court dismissed the appeal on the ground that the cause of action having already commenced after first presentation of cheque, subsequent presentation of cheque would not create another cause of action to the complainant. Notice was issued on respondents. In spite of the service of notice none appeared on behalf of the accused - respondents. Therefore, learned Amicus Curiae was appointed to assist the Court. 4. We have heard the parties and perused the record. The very same issue was considered by a three Judge Bench of this Court in "MSR Leathers Vs. S. Palaniappan"; - 2013 (1) SCC 177. The question relating to repeated presentation and dishonour of the cheque was considered. In the said case the Court held that the prosecution based upon the second or successive dishonour of the cheque is permissible so long as it satisfies all the requirements stipulated in proviso to Section 138.5. Same plea has been taken by learned counsel for the appellant in the present appeal. In view of the decision rendered in "MSR Leathers" (Supra) we have no option but to set aside the impugned judgment. We, accordingly set aside the judgment and order dated 27th August, 2012 passed by the High Court of Karnataka at Bangalore in Criminal Appeal No.2226 of 2005(A) and order dated 27th September, 2005 passed by 14th Chief Metropolitan Magistrate, Bangalore and remit the matter to trial court to proceed further in accordance with law after notice to the parties. 6. | 1[ds]5. Same plea has been taken by learned counsel for the appellant in the present appeal. In view of the decision rendered in "MSR Leathers" (Supra) we have no option but to set aside the impugned judgment. We, accordingly set aside the judgment and order dated 27th August, 2012 passed by the High Court of Karnataka at Bangalore in Criminal Appeal No.2226 of 2005(A) and order dated 27th September, 2005 passed by 14th Chief Metropolitan Magistrate, Bangalore and remit the matter to trial court to proceed further in accordance with law after notice to the parties. | 1 | 479 | 115 | ### 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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1. Leave granted. 2. This appeal has been preferred by appellant - Infrastructure Leasing & Fin. Service Ltd against the judgment and order dated 27th August, 2012 passed by the High Court of Karnataka at Bangalore in Criminal Appeal No.2226 of 2005(A). By the impugned judgment, the High Court while dismissing the appeal preferred by the appellant affirmed the order of acquittal dated 27 th September, 2005 passed by the 14th Chief Metropolitan Magistrate, Bangalore. The brief fact of the case is that the appellant company filed a complaint under Section 138 read with 141 of the Negotiable Instrument Act against the respondent No.1 - company and others. In the said case, the notice was issued to parties and after hearing the parties, the Court held that the limitation started from the date of the first notice and not from the second notice and the case being barred by limitation, the petition was dismissed and the accused were acquitted.3. Against the said judgment, the appellant preferred the appeal before the High Court wherein by impugned judgment dated 27th August, 2012, the High Court dismissed the appeal on the ground that the cause of action having already commenced after first presentation of cheque, subsequent presentation of cheque would not create another cause of action to the complainant. Notice was issued on respondents. In spite of the service of notice none appeared on behalf of the accused - respondents. Therefore, learned Amicus Curiae was appointed to assist the Court. 4. We have heard the parties and perused the record. The very same issue was considered by a three Judge Bench of this Court in "MSR Leathers Vs. S. Palaniappan"; - 2013 (1) SCC 177. The question relating to repeated presentation and dishonour of the cheque was considered. In the said case the Court held that the prosecution based upon the second or successive dishonour of the cheque is permissible so long as it satisfies all the requirements stipulated in proviso to Section 138.5. Same plea has been taken by learned counsel for the appellant in the present appeal. In view of the decision rendered in "MSR Leathers" (Supra) we have no option but to set aside the impugned judgment. We, accordingly set aside the judgment and order dated 27th August, 2012 passed by the High Court of Karnataka at Bangalore in Criminal Appeal No.2226 of 2005(A) and order dated 27th September, 2005 passed by 14th Chief Metropolitan Magistrate, Bangalore and remit the matter to trial court to proceed further in accordance with law after notice to the parties. 6.
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5. Same plea has been taken by learned counsel for the appellant in the present appeal. In view of the decision rendered in "MSR Leathers" (Supra) we have no option but to set aside the impugned judgment. We, accordingly set aside the judgment and order dated 27th August, 2012 passed by the High Court of Karnataka at Bangalore in Criminal Appeal No.2226 of 2005(A) and order dated 27th September, 2005 passed by 14th Chief Metropolitan Magistrate, Bangalore and remit the matter to trial court to proceed further in accordance with law after notice to the parties.
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Chief Of Army Staff And Ors Vs. Major S.P. Chadha | the case may be, such Magistrate shall not proceed to try such person or to commit the case to the Court of Sessions, unless he is moved to do so by a competent military, naval, air force or coast guard authority or he is of the opinion as set out in clauses (b) of Rules 3 of the said Rules. Rule 4, in brief, provides that when such a person as aforestated is brought before the Magistrate for trial, before proceeding to frame the charge, the Magistrate shall give a notice to the Commanding Officer or the competent military authority or, as the case may be, of the accused and till the expiry of the period of 15 days from the date of service of such notice, the Magistrate concerned will not proceed to do any of the things set out in clauses (a) to (d) of Rule 4 of the said Rules. 13. Army Instruction No. 31 of 1986, inter alia provided that an officer who ceases to carry out the duties of his appointment by being attached to another unit for disciplinary purposes will vacate his appointment or relinquish any acting rank after 21 days. There is a further provision in the said instruction that if such an officer is subsequently acquitted or for any purpose not brought to trial or his character is vindicated to the satisfaction of the appropriate authorities at Army Head-quarters vide such inquiry as is made under para 346 of the Regulations for the Army, such officer will be reappointed to the post vacated by him and the acting rank of the officer will be deemed to have been held by him continuously with effect from the date he relinquished it.14. The first question which arises for consideration is whether, after having opted for trial of the respondent by a court martial under the Army Act, he could have been sent back by the army authorities to the ordinary criminal court for standing trial of the same offence. It was submitted by learned counsel for the respondent that as the offence alleged to have been committed by the respondent was a civil offence under the Act, the army authorities had the option of allowing the ordinary criminal court, namely, the Magistrates court, to try the respondent for the offence, or claim the respondent for trial by a court martial. After having exercised that option in favour of a trial by court martial, it was not longer open to the army authorities to send the respondent back for trial by the Magistrates court. 15. In our opinion, Section 121 of the Act, which deals with the prohibition of second trial, has no application to the present case before us as the respondent was neither acquitted nor convicted by the court martial or by a criminal court nor has he been dealt with under Section 80, 83, 84 or 85 of the Act. Section 127 of the Act deals with successive trials by a criminal court and court martial and sub-section (1) of Section 127 thereof specifically provides that a person convicted or acquitted by a court martial may, with the previous sanction of the Central Government, be tried again by a criminal court for the same offence or on the same facts. A perusal of the provisions of this section clearly shows that there is no general bar as such prohibiting successive trials by a court martial and by a criminal court and that even where a person has been convicted or acquitted by a court martial of the offence in question, he can be tried for the same offence by a criminal court, with the previous sanction of the Central Government. In the case before us, the question of sanction of the Central Government never arose because, as we have already pointed out, the respondent was neither convicted nor acquitted by the court martial or dealt with under any of the sections set out earlier. In our opinion, therefore, the aforesaid submission of learned counsel for the respondent must be rejected. 16. It was submitted by learned counsel for the respondent that, as far as the attachment of the respondent to HQ 15 Artillery Brigade is concerned, he was attached to the said unit for purposes of completing the disciplinary proceedings under the Army Act. As he was sent to a regular criminal court for standing trial, the attachment can no longer survive. In our view, this argument deserves acceptance. The only purpose of attachment of any army officer to a different unit is that the disciplinary proceedings against him could be speedily and satisfactorily completed without any interference by him. In view of the respondent being sent to the ordinary criminal court for trial, there was no question of his interfering thereafter with the disciplinary proceedings and in view of that, the order of attachment against him must be set aside and the respondent must be reattached to the IInd Sikh Light Infantry which was his original unit. The correctness of this argument was not disputed by learned counsel for the appellants. 17. As far as the question of suspension is concerned, we find that the respondent was suspended pending proceedings contemplated against him, as set out earlier. Under Army Instruction No. 31 of 1986 to which we referred to in some detail earlier, he vacated his appointment and acting rank 21 days after the attachment to a different regiment for purposes of completing the proceeding against him. As he has not yet been acquitted nor has his character been vindicated to the satisfaction of the appropriate authorities at Army Headquarters and he is to be tried by the criminal court, till the trial is completed or given up or till he is acquitted or his character vindicated to the satisfaction of the appropriate authorities, there is no case for revocation of the order of his suspension or restoration of his acting rank. That claim made by the respondent must, therefore, fail. | 1[ds]15. In our opinion, Section 121 of the Act, which deals with the prohibition of second trial, has no application to the present case before us as the respondent was neither acquitted nor convicted by the court martial or by a criminal court nor has he been dealt with under Section 80, 83, 84 or 85 of the Act. Section 127 of the Act deals with successive trials by a criminal court and court martial and sub-section (1) of Section 127 thereof specifically provides that a person convicted or acquitted by a court martial may, with the previous sanction of the Central Government, be tried again by a criminal court for the same offence or on the same facts. A perusal of the provisions of this section clearly shows that there is no general bar as such prohibiting successive trials by a court martial and by a criminal court and that even where a person has been convicted or acquitted by a court martial of the offence in question, he can be tried for the same offence by a criminal court, with the previous sanction of the Central Government. In the case before us, the question of sanction of the Central Government never arose because, as we have already pointed out, the respondent was neither convicted nor acquitted by the court martial or dealt with under any of the sections set out earlier. In our opinion, therefore, the aforesaid submission of learned counsel for the respondent must beIt was submitted by learned counsel for the respondent that, as far as the attachment of the respondent to HQ 15 Artillery Brigade is concerned, he was attached to the said unit for purposes of completing the disciplinary proceedings under the Army Act. As he was sent to a regular criminal court for standing trial, the attachment can no longer survive. In our view, this argument deserves acceptance. The only purpose of attachment of any army officer to a different unit is that the disciplinary proceedings against him could be speedily and satisfactorily completed without any interference by him. In view of the respondent being sent to the ordinary criminal court for trial, there was no question of his interfering thereafter with the disciplinary proceedings and in view of that, the order of attachment against him must be set aside and the respondent must be reattached to the IInd Sikh Light Infantry which was his original unit. The correctness of this argument was not disputed by learned counsel for theAs far as the question of suspension is concerned, we find that the respondent was suspended pending proceedings contemplated against him, as set out earlier. Under Army Instruction No. 31 of 1986 to which we referred to in some detail earlier, he vacated his appointment and acting rank 21 days after the attachment to a different regiment for purposes of completing the proceeding against him. As he has not yet been acquitted nor has his character been vindicated to the satisfaction of the appropriate authorities at Army Headquarters and he is to be tried by the criminal court, till the trial is completed or given up or till he is acquitted or his character vindicated to the satisfaction of the appropriate authorities, there is no case for revocation of the order of his suspension or restoration of his acting rank. That claim made by the respondent must, therefore, fail | 1 | 2,846 | 612 | ### Instruction:
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the case may be, such Magistrate shall not proceed to try such person or to commit the case to the Court of Sessions, unless he is moved to do so by a competent military, naval, air force or coast guard authority or he is of the opinion as set out in clauses (b) of Rules 3 of the said Rules. Rule 4, in brief, provides that when such a person as aforestated is brought before the Magistrate for trial, before proceeding to frame the charge, the Magistrate shall give a notice to the Commanding Officer or the competent military authority or, as the case may be, of the accused and till the expiry of the period of 15 days from the date of service of such notice, the Magistrate concerned will not proceed to do any of the things set out in clauses (a) to (d) of Rule 4 of the said Rules. 13. Army Instruction No. 31 of 1986, inter alia provided that an officer who ceases to carry out the duties of his appointment by being attached to another unit for disciplinary purposes will vacate his appointment or relinquish any acting rank after 21 days. There is a further provision in the said instruction that if such an officer is subsequently acquitted or for any purpose not brought to trial or his character is vindicated to the satisfaction of the appropriate authorities at Army Head-quarters vide such inquiry as is made under para 346 of the Regulations for the Army, such officer will be reappointed to the post vacated by him and the acting rank of the officer will be deemed to have been held by him continuously with effect from the date he relinquished it.14. The first question which arises for consideration is whether, after having opted for trial of the respondent by a court martial under the Army Act, he could have been sent back by the army authorities to the ordinary criminal court for standing trial of the same offence. It was submitted by learned counsel for the respondent that as the offence alleged to have been committed by the respondent was a civil offence under the Act, the army authorities had the option of allowing the ordinary criminal court, namely, the Magistrates court, to try the respondent for the offence, or claim the respondent for trial by a court martial. After having exercised that option in favour of a trial by court martial, it was not longer open to the army authorities to send the respondent back for trial by the Magistrates court. 15. In our opinion, Section 121 of the Act, which deals with the prohibition of second trial, has no application to the present case before us as the respondent was neither acquitted nor convicted by the court martial or by a criminal court nor has he been dealt with under Section 80, 83, 84 or 85 of the Act. Section 127 of the Act deals with successive trials by a criminal court and court martial and sub-section (1) of Section 127 thereof specifically provides that a person convicted or acquitted by a court martial may, with the previous sanction of the Central Government, be tried again by a criminal court for the same offence or on the same facts. A perusal of the provisions of this section clearly shows that there is no general bar as such prohibiting successive trials by a court martial and by a criminal court and that even where a person has been convicted or acquitted by a court martial of the offence in question, he can be tried for the same offence by a criminal court, with the previous sanction of the Central Government. In the case before us, the question of sanction of the Central Government never arose because, as we have already pointed out, the respondent was neither convicted nor acquitted by the court martial or dealt with under any of the sections set out earlier. In our opinion, therefore, the aforesaid submission of learned counsel for the respondent must be rejected. 16. It was submitted by learned counsel for the respondent that, as far as the attachment of the respondent to HQ 15 Artillery Brigade is concerned, he was attached to the said unit for purposes of completing the disciplinary proceedings under the Army Act. As he was sent to a regular criminal court for standing trial, the attachment can no longer survive. In our view, this argument deserves acceptance. The only purpose of attachment of any army officer to a different unit is that the disciplinary proceedings against him could be speedily and satisfactorily completed without any interference by him. In view of the respondent being sent to the ordinary criminal court for trial, there was no question of his interfering thereafter with the disciplinary proceedings and in view of that, the order of attachment against him must be set aside and the respondent must be reattached to the IInd Sikh Light Infantry which was his original unit. The correctness of this argument was not disputed by learned counsel for the appellants. 17. As far as the question of suspension is concerned, we find that the respondent was suspended pending proceedings contemplated against him, as set out earlier. Under Army Instruction No. 31 of 1986 to which we referred to in some detail earlier, he vacated his appointment and acting rank 21 days after the attachment to a different regiment for purposes of completing the proceeding against him. As he has not yet been acquitted nor has his character been vindicated to the satisfaction of the appropriate authorities at Army Headquarters and he is to be tried by the criminal court, till the trial is completed or given up or till he is acquitted or his character vindicated to the satisfaction of the appropriate authorities, there is no case for revocation of the order of his suspension or restoration of his acting rank. That claim made by the respondent must, therefore, fail.
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### Explanation:
15. In our opinion, Section 121 of the Act, which deals with the prohibition of second trial, has no application to the present case before us as the respondent was neither acquitted nor convicted by the court martial or by a criminal court nor has he been dealt with under Section 80, 83, 84 or 85 of the Act. Section 127 of the Act deals with successive trials by a criminal court and court martial and sub-section (1) of Section 127 thereof specifically provides that a person convicted or acquitted by a court martial may, with the previous sanction of the Central Government, be tried again by a criminal court for the same offence or on the same facts. A perusal of the provisions of this section clearly shows that there is no general bar as such prohibiting successive trials by a court martial and by a criminal court and that even where a person has been convicted or acquitted by a court martial of the offence in question, he can be tried for the same offence by a criminal court, with the previous sanction of the Central Government. In the case before us, the question of sanction of the Central Government never arose because, as we have already pointed out, the respondent was neither convicted nor acquitted by the court martial or dealt with under any of the sections set out earlier. In our opinion, therefore, the aforesaid submission of learned counsel for the respondent must beIt was submitted by learned counsel for the respondent that, as far as the attachment of the respondent to HQ 15 Artillery Brigade is concerned, he was attached to the said unit for purposes of completing the disciplinary proceedings under the Army Act. As he was sent to a regular criminal court for standing trial, the attachment can no longer survive. In our view, this argument deserves acceptance. The only purpose of attachment of any army officer to a different unit is that the disciplinary proceedings against him could be speedily and satisfactorily completed without any interference by him. In view of the respondent being sent to the ordinary criminal court for trial, there was no question of his interfering thereafter with the disciplinary proceedings and in view of that, the order of attachment against him must be set aside and the respondent must be reattached to the IInd Sikh Light Infantry which was his original unit. The correctness of this argument was not disputed by learned counsel for theAs far as the question of suspension is concerned, we find that the respondent was suspended pending proceedings contemplated against him, as set out earlier. Under Army Instruction No. 31 of 1986 to which we referred to in some detail earlier, he vacated his appointment and acting rank 21 days after the attachment to a different regiment for purposes of completing the proceeding against him. As he has not yet been acquitted nor has his character been vindicated to the satisfaction of the appropriate authorities at Army Headquarters and he is to be tried by the criminal court, till the trial is completed or given up or till he is acquitted or his character vindicated to the satisfaction of the appropriate authorities, there is no case for revocation of the order of his suspension or restoration of his acting rank. That claim made by the respondent must, therefore, fail
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Lakshmi Rattan Engineering Works Ltd Vs. Asstt. Commr. Sales Tax, Kanpur & Anr | considered. There was thus satisfactory proof in the present case. No doubt, proof was not tendered following the method required by the rules but the question is whether the rules can make the section narrower by prescribing a particular mode. The section is general; it provides that the court should accept satisfactory proof.The rule requires that the memorandum of appeal shall be accompanied by the challan showing payment of tax. The rule lays down one uncontestable mode of proof which the Court will always accept but it does not exclude the operation of the proviso when equally satisfactory proof is made available to the officer hearing the appeal and it is proved to his satisfaction that the payment of the tax has been duly made and in time. In this sense, the rule can be regarded as directory since it lays down one of those modes which will be unquestioned for its validity. The other modes of proof are not necessarily shut out.12. It is to be remembered that all rules of procedure are intended to advance justice and not to defeat it. Here the right of appeal has been made subservient to the payment of the admitted tax. If the admitted tax is paid and there is proof available that it has been so paid, there exists no reason to create a second impediment in the way of the appeal. No doubt, rule makes it easy for the assessee to bring satisfactory proof in an uncontestable manner, but the provision of the rule is not to the exclusion of other satisfactory modes of proof.Suppose for instance that the challan was lost and the time for the filing of the appeal was expiring, could or could not the person concerned say that he had the certificate but had lost it and that he would produce a copy of the challan from the Treasury or obtain a certificate from the Treasury Officer. Could he not obtain from the bank the discharged cheque by which the amount of tax was deposited by him and produce it as the discharged counterfoil of payment. All these modes of proof will be equally irrefutable. In the present case the assessee had in his petition of appeal stated that the amount of tax had been paid and had fortified the statement by an affidavit. Before the hearing he produced a certificate from the Sales-tax Officer that the tax had been paid. The Assistant Commissioner ought therefore to have proceeded with the appeal because it was accompanied by satisfactory proof of the payment of the tax. To hold otherwise would put a premium upon a technicality which we do not see will advance the case either for the collection of the tax or for the administration of justice. The rule, as we have stated, indicates what is, the best and easiest method of achieving satisfactory proof. The certificate from the Sales-tax Officer, however, is as good proof as the challan from the Treasury and if such certificate was produced at the admission of the appeal, how the memorandum of appeal can be said to be defective under the section as it stands. In these circumstances, we hold that the rule is merely directory and indicates only one of the modes of satisfactory proof.13. The distinction made by the learned Chief Justice between the tangible and intangible objects does not in our opinion fall for consideration in the present case. If one holds that by entertainment is meant the time of admission of the appeal, satisfactory proof may be furnished at the time of admission of the appeal. We are of opinion that by the word "entertain " here is meant the first occasion on which the court takes up the matter for consideration. It may be at the admission stage or if by the rules of that Tribunal the appeals are automatically admitted, it will be the time of hearing of the appeal. But on the first occasion when the court takes up the matter for consideration, satisfactory proof must be presented that the tax was paid within the period by limitation available for the appeal. In the present case when the Assistant Commissioner took up the appeal for consideration, satisfactory proof was available in the shape of a certificate which even today is not denied. In our opinion the Assistant Commissioner was wrong in declining to consider the appeal in the presence of such uncontestable proof.14. It remains to point out why we did not insist upon the assessee exhausting his other remedies under the Act before coming to this court. It was made to appear to us that there is a right of revision and right of reference to the High Court in all such cases and that this remedy was not resorted to by the assessee before making a petition for Special Leave in this court. We were taken through a number of cases in which it has been laid down by this court that this court will not ordinarily grant special leave to appeal against an order when other remedies are available and have not been exhausted. But there is no inflexible rule that this court will never entertain an appeal and numerous instances have occur this court where such appeals have been admitted. It would have been futile in this case for the assessee to have gone to the court of revision which as bound by the ruling of the Allahabad High Court reported in 1963-14 STC 518 (All) (Cit. Supra) and it would have been equally futile to have gone to the High Court on a reference. The matter was more easily disposed of by giving special leave in this court and we therefore felt that this was one of those extra-ordinary cases in which the ends of justice would be better served, by avoiding a circuity of action and by dealing with this matter in this court directly. It is for this reason that we granted special leave to appeal. | 1[ds]This in main represents the essence of the controversy between thedictionary meaning of the word entertain was brought to our notice by the parties, and both sides agreed that it means either "to deal with or admit to consideration". We are also of the samethe present, we must say that if the legislature intended that the word file or receive was to be used, there was no difficulty in using those words. In some of the statutes which were brought to our notice such expressions have in fact been used For example, under Order 41, Rule 1 of theCode of Civil Procedure it is stated that a memorandum shall not be filed or presented unless it is accompanied etc., in S. 17 of the Small Causes Courts Act, the expression is at the time of presenting the application. In Section 6 of the Court Fees Act, the words are file or shall be received. It would appear from this that the Legislature was not at a loss for words if it had wanted to express itself in such forceful manner as is now suggested by counsel for the State. It has used the word entertain and it must be accepted that it has used itour opinion these cases have taken a correct view of the word entertain which according to dictionary also means admit to consideration. It would therefore appear that the direction to the court in the proviso to S. 9 is that the court shall not proceed to admit to consideration an appeal which is not accompanied by satisfactory proof of the payment of the admitted tax. This will be when the case is taken up by the court for the first time. In the decision on which the Assistant Commissioner relied, the learned Chief Justice (Desai C. J.) holds that the words "accompanied by" showed that something tangible had to accompany the memorandum of appeal. If the memorandum of appeal had to be accompanied by satisfactory proof, it had to be in the shape of something tangible, because no intangible thing can accompany a document like the memorandum of appeal. In our opinion, making an appeal the equivalent of the memorandum of appeal is not sound. Even under 0. 41 of theCode of Civil Procedure, the expressions "appeal" and "memorandum of appeal" are used to denote two distinct things.is quite obvious that the section as it stands only requires that at the time of the consideration of the appeal, there should be satisfactory proof that the admitted tax has been deposited. It only says that no appeal shall be entertained unless accompanied by satisfactory proof of the payment of the tax. This satisfactory proof may take any form; in fact in the present case satisfactory proof was tendered in the shape of a certificate from the Sales-tax Officer that the admitted tax had been deposited and well within time. Under Section 9 and its proviso as they stand, it is quite obvious that entertainment means the point of time when the appeal is being considered. There was thus satisfactory proof in the present case. No doubt, proof was not tendered following the method required by the rules but the question is whether the rules can make the section narrower by prescribing a particular mode. The section is general; it provides that the court should accept satisfactory proof.The rule requires that the memorandum of appeal shall be accompanied by the challan showing payment of tax. The rule lays down one uncontestable mode of proof which the Court will always accept but it does not exclude the operation of the proviso when equally satisfactory proof is made available to the officer hearing the appeal and it is proved to his satisfaction that the payment of the tax has been duly made and in time. In this sense, the rule can be regarded as directory since it lays down one of those modes which will be unquestioned for its validity. The other modes of proof are not necessarily shut out.12. It is to be remembered that all rules of procedure are intended to advance justice and not to defeat it. Here the right of appeal has been made subservient to the payment of the admitted tax. If the admitted tax is paid and there is proof available that it has been so paid, there exists no reason to create a second impediment in the way of the appeal. No doubt, rule makes it easy for the assessee to bring satisfactory proof in an uncontestable manner, but the provision of the rule is not to the exclusion of other satisfactory modes of proof.Suppose for instance that the challan was lost and the time for the filing of the appeal was expiring, could or could not the person concerned say that he had the certificate but had lost it and that he would produce a copy of the challan from the Treasury or obtain a certificate from the Treasury Officer. Could he not obtain from the bank the discharged cheque by which the amount of tax was deposited by him and produce it as the discharged counterfoil of payment. All these modes of proof will be equally irrefutable. In the present case the assessee had in his petition of appeal stated that the amount of tax had been paid and had fortified the statement by an affidavit. Before the hearing he produced a certificate from the Sales-tax Officer that the tax had been paid. The Assistant Commissioner ought therefore to have proceeded with the appeal because it was accompanied by satisfactory proof of the payment of the tax. To hold otherwise would put a premium upon a technicality which we do not see will advance the case either for the collection of the tax or for the administration of justice. The rule, as we have stated, indicates what is, the best and easiest method of achieving satisfactory proof. The certificate from the Sales-tax Officer, however, is as good proof as the challan from the Treasury and if such certificate was produced at the admission of the appeal, how the memorandum of appeal can be said to be defective under the section as it stands. In these circumstances, we hold that the rule is merely directory and indicates only one of the modes of satisfactorythe present case when the Assistant Commissioner took up the appeal for consideration, satisfactory proof was available in the shape of a certificate which even today is not denied. In our opinion the Assistant Commissioner was wrong in declining to consider the appeal in the presence of such uncontestable proof.14. It remains to point out why we did not insist upon the assessee exhausting his other remedies under the Act before coming to this court. It was made to appear to us that there is a right of revision and right of reference to the High Court in all such cases and that this remedy was not resorted to by the assessee before making a petition for Special Leave in this court. We were taken through a number of cases in which it has been laid down by this court that this court will not ordinarily grant special leave to appeal against an order when other remedies are available and have not been exhausted. But there is no inflexible rule that this court will never entertain an appeal and numerous instances have occur this court where such appeals have been admitted. It would have been futile in this case for the assessee to have gone to the court of revision which as bound by the ruling of the Allahabad High Court reported in 1963-14 STC 518 (All) (Cit. Supra) and it would have been equally futile to have gone to the High Court on a reference. The matter was more easily disposed of by giving special leave in this court and we therefore felt that this was one of those extra-ordinary cases in which the ends of justice would be better served, by avoiding a circuity of action and by dealing with this matter in this court directly. It is for this reason that we granted special leave to appeal. | 1 | 4,441 | 1,457 | ### Instruction:
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considered. There was thus satisfactory proof in the present case. No doubt, proof was not tendered following the method required by the rules but the question is whether the rules can make the section narrower by prescribing a particular mode. The section is general; it provides that the court should accept satisfactory proof.The rule requires that the memorandum of appeal shall be accompanied by the challan showing payment of tax. The rule lays down one uncontestable mode of proof which the Court will always accept but it does not exclude the operation of the proviso when equally satisfactory proof is made available to the officer hearing the appeal and it is proved to his satisfaction that the payment of the tax has been duly made and in time. In this sense, the rule can be regarded as directory since it lays down one of those modes which will be unquestioned for its validity. The other modes of proof are not necessarily shut out.12. It is to be remembered that all rules of procedure are intended to advance justice and not to defeat it. Here the right of appeal has been made subservient to the payment of the admitted tax. If the admitted tax is paid and there is proof available that it has been so paid, there exists no reason to create a second impediment in the way of the appeal. No doubt, rule makes it easy for the assessee to bring satisfactory proof in an uncontestable manner, but the provision of the rule is not to the exclusion of other satisfactory modes of proof.Suppose for instance that the challan was lost and the time for the filing of the appeal was expiring, could or could not the person concerned say that he had the certificate but had lost it and that he would produce a copy of the challan from the Treasury or obtain a certificate from the Treasury Officer. Could he not obtain from the bank the discharged cheque by which the amount of tax was deposited by him and produce it as the discharged counterfoil of payment. All these modes of proof will be equally irrefutable. In the present case the assessee had in his petition of appeal stated that the amount of tax had been paid and had fortified the statement by an affidavit. Before the hearing he produced a certificate from the Sales-tax Officer that the tax had been paid. The Assistant Commissioner ought therefore to have proceeded with the appeal because it was accompanied by satisfactory proof of the payment of the tax. To hold otherwise would put a premium upon a technicality which we do not see will advance the case either for the collection of the tax or for the administration of justice. The rule, as we have stated, indicates what is, the best and easiest method of achieving satisfactory proof. The certificate from the Sales-tax Officer, however, is as good proof as the challan from the Treasury and if such certificate was produced at the admission of the appeal, how the memorandum of appeal can be said to be defective under the section as it stands. In these circumstances, we hold that the rule is merely directory and indicates only one of the modes of satisfactory proof.13. The distinction made by the learned Chief Justice between the tangible and intangible objects does not in our opinion fall for consideration in the present case. If one holds that by entertainment is meant the time of admission of the appeal, satisfactory proof may be furnished at the time of admission of the appeal. We are of opinion that by the word "entertain " here is meant the first occasion on which the court takes up the matter for consideration. It may be at the admission stage or if by the rules of that Tribunal the appeals are automatically admitted, it will be the time of hearing of the appeal. But on the first occasion when the court takes up the matter for consideration, satisfactory proof must be presented that the tax was paid within the period by limitation available for the appeal. In the present case when the Assistant Commissioner took up the appeal for consideration, satisfactory proof was available in the shape of a certificate which even today is not denied. In our opinion the Assistant Commissioner was wrong in declining to consider the appeal in the presence of such uncontestable proof.14. It remains to point out why we did not insist upon the assessee exhausting his other remedies under the Act before coming to this court. It was made to appear to us that there is a right of revision and right of reference to the High Court in all such cases and that this remedy was not resorted to by the assessee before making a petition for Special Leave in this court. We were taken through a number of cases in which it has been laid down by this court that this court will not ordinarily grant special leave to appeal against an order when other remedies are available and have not been exhausted. But there is no inflexible rule that this court will never entertain an appeal and numerous instances have occur this court where such appeals have been admitted. It would have been futile in this case for the assessee to have gone to the court of revision which as bound by the ruling of the Allahabad High Court reported in 1963-14 STC 518 (All) (Cit. Supra) and it would have been equally futile to have gone to the High Court on a reference. The matter was more easily disposed of by giving special leave in this court and we therefore felt that this was one of those extra-ordinary cases in which the ends of justice would be better served, by avoiding a circuity of action and by dealing with this matter in this court directly. It is for this reason that we granted special leave to appeal.
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the memorandum of appeal is not sound. Even under 0. 41 of theCode of Civil Procedure, the expressions "appeal" and "memorandum of appeal" are used to denote two distinct things.is quite obvious that the section as it stands only requires that at the time of the consideration of the appeal, there should be satisfactory proof that the admitted tax has been deposited. It only says that no appeal shall be entertained unless accompanied by satisfactory proof of the payment of the tax. This satisfactory proof may take any form; in fact in the present case satisfactory proof was tendered in the shape of a certificate from the Sales-tax Officer that the admitted tax had been deposited and well within time. Under Section 9 and its proviso as they stand, it is quite obvious that entertainment means the point of time when the appeal is being considered. There was thus satisfactory proof in the present case. No doubt, proof was not tendered following the method required by the rules but the question is whether the rules can make the section narrower by prescribing a particular mode. The section is general; it provides that the court should accept satisfactory proof.The rule requires that the memorandum of appeal shall be accompanied by the challan showing payment of tax. The rule lays down one uncontestable mode of proof which the Court will always accept but it does not exclude the operation of the proviso when equally satisfactory proof is made available to the officer hearing the appeal and it is proved to his satisfaction that the payment of the tax has been duly made and in time. In this sense, the rule can be regarded as directory since it lays down one of those modes which will be unquestioned for its validity. The other modes of proof are not necessarily shut out.12. It is to be remembered that all rules of procedure are intended to advance justice and not to defeat it. Here the right of appeal has been made subservient to the payment of the admitted tax. If the admitted tax is paid and there is proof available that it has been so paid, there exists no reason to create a second impediment in the way of the appeal. No doubt, rule makes it easy for the assessee to bring satisfactory proof in an uncontestable manner, but the provision of the rule is not to the exclusion of other satisfactory modes of proof.Suppose for instance that the challan was lost and the time for the filing of the appeal was expiring, could or could not the person concerned say that he had the certificate but had lost it and that he would produce a copy of the challan from the Treasury or obtain a certificate from the Treasury Officer. Could he not obtain from the bank the discharged cheque by which the amount of tax was deposited by him and produce it as the discharged counterfoil of payment. All these modes of proof will be equally irrefutable. In the present case the assessee had in his petition of appeal stated that the amount of tax had been paid and had fortified the statement by an affidavit. Before the hearing he produced a certificate from the Sales-tax Officer that the tax had been paid. The Assistant Commissioner ought therefore to have proceeded with the appeal because it was accompanied by satisfactory proof of the payment of the tax. To hold otherwise would put a premium upon a technicality which we do not see will advance the case either for the collection of the tax or for the administration of justice. The rule, as we have stated, indicates what is, the best and easiest method of achieving satisfactory proof. The certificate from the Sales-tax Officer, however, is as good proof as the challan from the Treasury and if such certificate was produced at the admission of the appeal, how the memorandum of appeal can be said to be defective under the section as it stands. In these circumstances, we hold that the rule is merely directory and indicates only one of the modes of satisfactorythe present case when the Assistant Commissioner took up the appeal for consideration, satisfactory proof was available in the shape of a certificate which even today is not denied. In our opinion the Assistant Commissioner was wrong in declining to consider the appeal in the presence of such uncontestable proof.14. It remains to point out why we did not insist upon the assessee exhausting his other remedies under the Act before coming to this court. It was made to appear to us that there is a right of revision and right of reference to the High Court in all such cases and that this remedy was not resorted to by the assessee before making a petition for Special Leave in this court. We were taken through a number of cases in which it has been laid down by this court that this court will not ordinarily grant special leave to appeal against an order when other remedies are available and have not been exhausted. But there is no inflexible rule that this court will never entertain an appeal and numerous instances have occur this court where such appeals have been admitted. It would have been futile in this case for the assessee to have gone to the court of revision which as bound by the ruling of the Allahabad High Court reported in 1963-14 STC 518 (All) (Cit. Supra) and it would have been equally futile to have gone to the High Court on a reference. The matter was more easily disposed of by giving special leave in this court and we therefore felt that this was one of those extra-ordinary cases in which the ends of justice would be better served, by avoiding a circuity of action and by dealing with this matter in this court directly. It is for this reason that we granted special leave to appeal.
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ABDULLAKOYA HAJI Vs. RUBIS THARAYIL | contend that the High Court also having taken note of the documents that were tendered in evidence has taken into consideration the fact that towards the sale consideration a sum of Rs. 75 Lakhs had been paid as advance and the plaintiff had also shown that they were ready with the further amount of Rs.75 lakhs which was to be paid on or before 15.10.2007. In that view, it is contended that the High Court had rightly taken note that the plaintiff had the capacity to arrange the financial resource and as such had decreed the suit. It is also his contention that in the final conclusion when out of the five properties the Item No. 3 and 4 properties were excluded since the right to transfer the minors property had not been established, the balance amount payable was much lesser being equivalent only to the value of the properties in suit Item Nos. 1, 2 and 5. The balance payable would amount to Rs. 52,34,700/- and in view of the judgment passed by the High Court the amount is also deposited on 08.11.2018. 22. The learned senior counsel for the appellants- defendants on the other hand would contend that the defendants were willing to transfer all the five Items of the property provided the plaintiffs were ready and willing and had paid the entire balance sale consideration for all the items of property. It is contended that there was no bar to transfer the minors right by the natural guardian and in any event when the plaintiffs have filed the suit seeking specific performance of the agreement in its entirety, in order to succeed they were required to establish their readiness and willingness in entirety and only thereafter any other consideration even to carve out certain properties would have arisen. The learned senior counsel for the appellant has relied on the decision of this Court in the case of N.P. Thirugnanam (dead) by L.Rs vs. Dr. R. Jagan Mohan Rao and Ors. (1995) 5 SCC 1150 wherein it is held that in the absence of showing continuous readiness and willingness on the part of the plaintiff, the relief of specific performance would not arise. 23. In the above background, we find that the consideration as made by the High Court does not indicate that the High Court has taken note of the evidence in the manner as has been analysed by the Trial Court. From the reasoning as extracted above the High Court has proceeded by indicating that the readiness includes the capacity to raise funds for purchasing the property. To that extent though the High Court was justified, the assessment of the evidence made does not indicate that there were sufficient documents to show that they had the capacity to raise the funds for the entire balance sale consideration. The error committed by the High Court is that it proceeded on the basis that the total consideration of the transaction is Rs. 1.5 crores of which Rs. 75 Lakhs was paid as advance and since there was an offer to pay the balance of Rs. 75 Lakhs on or before 15.10.2007 which was available in credit to their account as on 11.10.2007 the same was sufficient. Hence it concluded that it cannot be stated that the plaintiffs were incapable of raising the funds. From the discussion made by the Trial Court as also by us in the course of this judgment, it would indicate that in so far as the total sale consideration is concerned, even if the extent indicated as per the Court Commissioners report is taken, it would be the sum of Rs. 2,01,00,850/-. Therefore, the balance payable would be Rs. 1,26,00,850/-. Towards payment of such balance sale consideration though as on 15.10.2007 the sum of Rs. 75 Lakhs was shown to the credit, the availability of that amount subsequent to 08.11.2007 is not shown as the statement at Exhibit A5 is only for the periods 09.10.2007 to 08.11.2007. Hence, the said amount will have to be taken as being made available at one point in time by juggling the figures and was not shown available for payment at the relevant point when the suit was filed. Hence on exclusion of the same the remaining amount through Exhibit A11 to A13 would be in-sufficient to indicate that as on date of filing the suit they had the entire remaining balance sale consideration and were ready and willing to complete the transaction. In that circumstance, the deposit presently made after the judgment is rendered by the High Court to the reduced extent would not be of assistance as there would be change in the circumstances after more than a decade, as against what the position was in the year 2007. 24. In that circumstance, when not only the availability of fund was satisfactorily explained but in a circumstance where the first plaintiff had entered into an agreement dated 23.10.2007 in favour of Shri Ali Khan in respect of the very same properties even before securing the sale deed in their favour, the bonafides would also become relevant when the specific performance as an equitable relief is taken into consideration. In that view, the Trial Court while declining the relief of specific performance has appropriately granted the decree for realisation of the sum of Rs. 75 Lakhs with interest at 9% per annum. To that extent though the Trial Court was justified, we find it necessary to protect the interest of the plaintiffs to recover the said amount. In that view, it is necessary to direct the defendants to refund the amount to the plaintiffs within a time frame, failing which the amount is to be paid with the higher rate of interest. Further, charge is to be created over the suit schedule properties to ensure repayment of the amount. Subject to the above the impugned judgment dated 21.08.2018 in RFA No. 344/2011 is liable to be set aside. 25. In the result we pass the following, ORDER | 1[ds]11. In that background, in so far as the execution of the agreement dated 26.03.2007 and the payment of the advance amounting to Rs. 75 lakhs, there is no serious dispute. The requirement under the agreement was for the plaintiffs to pay a further sum of Rs. 75 lakhs on or before 15.10.200712. In that background, in so far as the payment of the advance amount of Rs. 75 lakhs though appears to be a substantial sum, the readiness and willingness of the plaintiffs with the balance sale consideration is to be taken note keeping in view that the balance sale consideration payable was also substantial. The second plaintiff examined himself as PW-1 by filing his affidavit through which he has reiterated the plaint averments13. Be that as it may, as rightly pointed out by the learned Senior Advocate appearing for the defendants, the depiction in the said endorsement about the production of the title deeds does not reflect the true state of affairs in as much as PW-1 in his cross- examination has admitted that prior to the execution of the agreement, the copies of the title deeds produced before the Court were shown to him and that he had entered into the agreement on being satisfied that the defendants have ownership and title to the suit property. Though the issue relating to the transfer of the rights of the minor had also arisen, the defendants were prepared to execute the sale deed through the natural guardian representing the interest of the minors. Though the said aspect was also one of the issues, considering the fact that the Trial Court and the High Court have arrived at divergent conclusion relating to the availability of the remaining sale consideration, examination of that issue would be appropriate as other issues would depend on that aspect15. It is in that back drop even if the lower sum of Rs. 1,02,60,850 (One Crore Two Lakhs Sixty Thousand Eight Hundred and Fifty only), is taken into consideration the availability of funds in that regard to pay balance sale consideration is to be examined. In that regard even though the document at Exhibit A5, the account extract of Axis Bank for the periods 09.10.2007 to 08.11.2007 is taken note, the same will at least indicate that the sum of Rs. 75 lakhs was available in the account as on 15.10.2007. Though the sum of Rs. 75 lakhs was shown in the account and even if the endorsement dated 14.10.2007 at the foot of the agreement is taken note, the said amount should be shown to have been available with the plaintiffs even subsequent to 08.11.2007, as also on the date when the demand was made by issue of legal notice and further when the suit was filed and specific performance was sought. In the absence of the same, a temporary arrangement made to have certain funds in the account on a relevant date alone cannot be considered as the financial resource being available to complete the transaction when in addition to the said amount, further sum was required. This is more so in a circumstance where in the instant facts the first plaintiff had entered into an agreement of sale dated 23.10.2007 (Exhibit X1) with one Shri Ali Khan during the subsistence of the suit subject agreement and in the said agreement the first plaintiff with reference to the very properties which is the subject matter of the suitHaving taken note of the decision we are of the opinion that the said decision would not be squarely applicable to the present facts so as to discard the evidence of PW-1. In so far as the agreement dated 26.03.2007 regarding which specific performance is sought, we notice that though Shri Devassy has entered into the agreement with the defendants it is done so, for and on behalf of Shri Rubis Tharayil and therefore Shri Rubis Tharayil is also arrayed as the plaintiff No. 1 in the suit. If that be the position, in so far as the suit transaction and the evidence to prove the sufficiency of funds, the evidence tendered by him would be relevant. Hence, in so far as the personal knowledge relating to the other aspects i.e. entering into agreement with Shri Ali Khan and the recitals therein, it was required to be explained by examining Shri Devassy who would have been the relevant and competent witness to explain that aspect of the matter more particularly when reference with regard to the financial capacity is made therein17. In that regard, the extract from the agreement dated 23.10.2007 (Exhibit X1) between Shri Devassy and Shri Ali Khan noticed above indicates that the intention of seeking specific performance of the agreement dated 26.03.2007 is given up there under. One of the parties to the said agreement namely Shri Ali Khan was examined by the defendants as DW-2, who apart from referring to the agreement has also stated that the same was entered into since the plaintiffs did not have the financial resources to continue the transaction. In that circumstance, it is only Shri Devassy who could have explained the real reason if any for executing the said agreement dated 23.10.2007 if it was not for the purpose indicated therein and as spoken to by DW-2. In such situation the execution of the said agreement dated 23.10.2007 will have to be taken as a strong circumstance wherein it indicates that the plaintiffs, prior to filing the suit itself had intended to give up their right to seek for specific performance for want of the financial resources19. In that background, the perusal of the judgment passed by the Trial Court would indicate that the Trial Court on appreciating the evidence has at the outset arrived at the conclusion that in view of endorsement dated 14.10.2007 contained in the agreement the non- payment of Rs. 75 Lakhs on or before 15.10.2007 would constitute waiver and cannot be considered as a breach committed by the plaintiff. To that extent the Trial Court was justified and even if that be so the availability of the sum of Rs. 75 Lakhs sought to be established through the document at Exhibit A5 is taken into consideration, whether the said amount was still available subsequent thereto and whether the readiness and willingness can be accepted as proved was the appropriate consideration required to be made. Hence the Trial Court in that regard has rightly taken note of the entire evidence. While taking note of this aspect, as has been referred to by us herein above, the Trial Court has taken note that the plaintiffs were required to arrange the total balance sale consideration of Rs. 1,31,79,700/- (One Crore Thirty-One Lakhs Seventy-Nine Thousand Seven Hundred only)20. In that regard, the document at Exhibit A5 namely the accounts statement of Axis Bank was taken into consideration and had rightly observed that the ledger extract for the period subsequent to 19.10.2007 was not produced and in that view the evidence of PW-1 was referred as he could not say on which day he withdrew Rs. 75 Lakhs from his bank account. The Exhibits A6, A7 and A8 were taken note though it was not appropriately attested and the amount as indicated in the said documents at Rs. 15,62,426.70/- Rs. 5,00,488/- and Rs. 7,97,205/- which were in credit to the said account was taken note. Having discarded Exhibit A9 which was a fax message without the supporting bank documents, the amount of Rs. 2,33,399/- in Exhibit A11 and Rs. 37,187/- in Exhibit A12 was also taken note. The Trial Court had also taken into consideration the agreement entered into between Shri Devassy and Shri Ali Khan, dated 23.10.2007 marked as Exhibit X1 which was also one of the reasons to arrive at the conclusion that the plaintiff had not proved their readiness and willingness23. In the above background, we find that the consideration as made by the High Court does not indicate that the High Court has taken note of the evidence in the manner as has been analysed by the Trial Court. From the reasoning as extracted above the High Court has proceeded by indicating that the readiness includes the capacity to raise funds for purchasing the property. To that extent though the High Court was justified, the assessment of the evidence made does not indicate that there were sufficient documents to show that they had the capacity to raise the funds for the entire balance sale consideration. The error committed by the High Court is that it proceeded on the basis that the total consideration of the transaction is Rs. 1.5 crores of which Rs. 75 Lakhs was paid as advance and since there was an offer to pay the balance of Rs. 75 Lakhs on or before 15.10.2007 which was available in credit to their account as on 11.10.2007 the same was sufficient. Hence it concluded that it cannot be stated that the plaintiffs were incapable of raising the funds. From the discussion made by the Trial Court as also by us in the course of this judgment, it would indicate that in so far as the total sale consideration is concerned, even if the extent indicated as per the Court Commissioners report is taken, it would be the sum of Rs. 2,01,00,850/-. Therefore, the balance payable would be Rs. 1,26,00,850/-. Towards payment of such balance sale consideration though as on 15.10.2007 the sum of Rs. 75 Lakhs was shown to the credit, the availability of that amount subsequent to 08.11.2007 is not shown as the statement at Exhibit A5 is only for the periods 09.10.2007 to 08.11.2007. Hence, the said amount will have to be taken as being made available at one point in time by juggling the figures and was not shown available for payment at the relevant point when the suit was filed. Hence on exclusion of the same the remaining amount through Exhibit A11 to A13 would be in-sufficient to indicate that as on date of filing the suit they had the entire remaining balance sale consideration and were ready and willing to complete the transaction. In that circumstance, the deposit presently made after the judgment is rendered by the High Court to the reduced extent would not be of assistance as there would be change in the circumstances after more than a decade, as against what the position was in the year 200724. In that circumstance, when not only the availability of fund was satisfactorily explained but in a circumstance where the first plaintiff had entered into an agreement dated 23.10.2007 in favour of Shri Ali Khan in respect of the very same properties even before securing the sale deed in their favour, the bonafides would also become relevant when the specific performance as an equitable relief is taken into consideration. In that view, the Trial Court while declining the relief of specific performance has appropriately granted the decree for realisation of the sum of Rs. 75 Lakhs with interest at 9% per annum. To that extent though the Trial Court was justified, we find it necessary to protect the interest of the plaintiffs to recover the said amount. In that view, it is necessary to direct the defendants to refund the amount to the plaintiffs within a time frame, failing which the amount is to be paid with the higher rate of interest. Further, charge is to be created over the suit schedule properties to ensure repayment of the amount. Subject to the above the impugned judgment dated 21.08.2018 in RFA No. 344/2011 is liable to be set aside. | 1 | 5,598 | 2,070 | ### Instruction:
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contend that the High Court also having taken note of the documents that were tendered in evidence has taken into consideration the fact that towards the sale consideration a sum of Rs. 75 Lakhs had been paid as advance and the plaintiff had also shown that they were ready with the further amount of Rs.75 lakhs which was to be paid on or before 15.10.2007. In that view, it is contended that the High Court had rightly taken note that the plaintiff had the capacity to arrange the financial resource and as such had decreed the suit. It is also his contention that in the final conclusion when out of the five properties the Item No. 3 and 4 properties were excluded since the right to transfer the minors property had not been established, the balance amount payable was much lesser being equivalent only to the value of the properties in suit Item Nos. 1, 2 and 5. The balance payable would amount to Rs. 52,34,700/- and in view of the judgment passed by the High Court the amount is also deposited on 08.11.2018. 22. The learned senior counsel for the appellants- defendants on the other hand would contend that the defendants were willing to transfer all the five Items of the property provided the plaintiffs were ready and willing and had paid the entire balance sale consideration for all the items of property. It is contended that there was no bar to transfer the minors right by the natural guardian and in any event when the plaintiffs have filed the suit seeking specific performance of the agreement in its entirety, in order to succeed they were required to establish their readiness and willingness in entirety and only thereafter any other consideration even to carve out certain properties would have arisen. The learned senior counsel for the appellant has relied on the decision of this Court in the case of N.P. Thirugnanam (dead) by L.Rs vs. Dr. R. Jagan Mohan Rao and Ors. (1995) 5 SCC 1150 wherein it is held that in the absence of showing continuous readiness and willingness on the part of the plaintiff, the relief of specific performance would not arise. 23. In the above background, we find that the consideration as made by the High Court does not indicate that the High Court has taken note of the evidence in the manner as has been analysed by the Trial Court. From the reasoning as extracted above the High Court has proceeded by indicating that the readiness includes the capacity to raise funds for purchasing the property. To that extent though the High Court was justified, the assessment of the evidence made does not indicate that there were sufficient documents to show that they had the capacity to raise the funds for the entire balance sale consideration. The error committed by the High Court is that it proceeded on the basis that the total consideration of the transaction is Rs. 1.5 crores of which Rs. 75 Lakhs was paid as advance and since there was an offer to pay the balance of Rs. 75 Lakhs on or before 15.10.2007 which was available in credit to their account as on 11.10.2007 the same was sufficient. Hence it concluded that it cannot be stated that the plaintiffs were incapable of raising the funds. From the discussion made by the Trial Court as also by us in the course of this judgment, it would indicate that in so far as the total sale consideration is concerned, even if the extent indicated as per the Court Commissioners report is taken, it would be the sum of Rs. 2,01,00,850/-. Therefore, the balance payable would be Rs. 1,26,00,850/-. Towards payment of such balance sale consideration though as on 15.10.2007 the sum of Rs. 75 Lakhs was shown to the credit, the availability of that amount subsequent to 08.11.2007 is not shown as the statement at Exhibit A5 is only for the periods 09.10.2007 to 08.11.2007. Hence, the said amount will have to be taken as being made available at one point in time by juggling the figures and was not shown available for payment at the relevant point when the suit was filed. Hence on exclusion of the same the remaining amount through Exhibit A11 to A13 would be in-sufficient to indicate that as on date of filing the suit they had the entire remaining balance sale consideration and were ready and willing to complete the transaction. In that circumstance, the deposit presently made after the judgment is rendered by the High Court to the reduced extent would not be of assistance as there would be change in the circumstances after more than a decade, as against what the position was in the year 2007. 24. In that circumstance, when not only the availability of fund was satisfactorily explained but in a circumstance where the first plaintiff had entered into an agreement dated 23.10.2007 in favour of Shri Ali Khan in respect of the very same properties even before securing the sale deed in their favour, the bonafides would also become relevant when the specific performance as an equitable relief is taken into consideration. In that view, the Trial Court while declining the relief of specific performance has appropriately granted the decree for realisation of the sum of Rs. 75 Lakhs with interest at 9% per annum. To that extent though the Trial Court was justified, we find it necessary to protect the interest of the plaintiffs to recover the said amount. In that view, it is necessary to direct the defendants to refund the amount to the plaintiffs within a time frame, failing which the amount is to be paid with the higher rate of interest. Further, charge is to be created over the suit schedule properties to ensure repayment of the amount. Subject to the above the impugned judgment dated 21.08.2018 in RFA No. 344/2011 is liable to be set aside. 25. In the result we pass the following, ORDER
### Response:
1
### Explanation:
that background, the perusal of the judgment passed by the Trial Court would indicate that the Trial Court on appreciating the evidence has at the outset arrived at the conclusion that in view of endorsement dated 14.10.2007 contained in the agreement the non- payment of Rs. 75 Lakhs on or before 15.10.2007 would constitute waiver and cannot be considered as a breach committed by the plaintiff. To that extent the Trial Court was justified and even if that be so the availability of the sum of Rs. 75 Lakhs sought to be established through the document at Exhibit A5 is taken into consideration, whether the said amount was still available subsequent thereto and whether the readiness and willingness can be accepted as proved was the appropriate consideration required to be made. Hence the Trial Court in that regard has rightly taken note of the entire evidence. While taking note of this aspect, as has been referred to by us herein above, the Trial Court has taken note that the plaintiffs were required to arrange the total balance sale consideration of Rs. 1,31,79,700/- (One Crore Thirty-One Lakhs Seventy-Nine Thousand Seven Hundred only)20. In that regard, the document at Exhibit A5 namely the accounts statement of Axis Bank was taken into consideration and had rightly observed that the ledger extract for the period subsequent to 19.10.2007 was not produced and in that view the evidence of PW-1 was referred as he could not say on which day he withdrew Rs. 75 Lakhs from his bank account. The Exhibits A6, A7 and A8 were taken note though it was not appropriately attested and the amount as indicated in the said documents at Rs. 15,62,426.70/- Rs. 5,00,488/- and Rs. 7,97,205/- which were in credit to the said account was taken note. Having discarded Exhibit A9 which was a fax message without the supporting bank documents, the amount of Rs. 2,33,399/- in Exhibit A11 and Rs. 37,187/- in Exhibit A12 was also taken note. The Trial Court had also taken into consideration the agreement entered into between Shri Devassy and Shri Ali Khan, dated 23.10.2007 marked as Exhibit X1 which was also one of the reasons to arrive at the conclusion that the plaintiff had not proved their readiness and willingness23. In the above background, we find that the consideration as made by the High Court does not indicate that the High Court has taken note of the evidence in the manner as has been analysed by the Trial Court. From the reasoning as extracted above the High Court has proceeded by indicating that the readiness includes the capacity to raise funds for purchasing the property. To that extent though the High Court was justified, the assessment of the evidence made does not indicate that there were sufficient documents to show that they had the capacity to raise the funds for the entire balance sale consideration. The error committed by the High Court is that it proceeded on the basis that the total consideration of the transaction is Rs. 1.5 crores of which Rs. 75 Lakhs was paid as advance and since there was an offer to pay the balance of Rs. 75 Lakhs on or before 15.10.2007 which was available in credit to their account as on 11.10.2007 the same was sufficient. Hence it concluded that it cannot be stated that the plaintiffs were incapable of raising the funds. From the discussion made by the Trial Court as also by us in the course of this judgment, it would indicate that in so far as the total sale consideration is concerned, even if the extent indicated as per the Court Commissioners report is taken, it would be the sum of Rs. 2,01,00,850/-. Therefore, the balance payable would be Rs. 1,26,00,850/-. Towards payment of such balance sale consideration though as on 15.10.2007 the sum of Rs. 75 Lakhs was shown to the credit, the availability of that amount subsequent to 08.11.2007 is not shown as the statement at Exhibit A5 is only for the periods 09.10.2007 to 08.11.2007. Hence, the said amount will have to be taken as being made available at one point in time by juggling the figures and was not shown available for payment at the relevant point when the suit was filed. Hence on exclusion of the same the remaining amount through Exhibit A11 to A13 would be in-sufficient to indicate that as on date of filing the suit they had the entire remaining balance sale consideration and were ready and willing to complete the transaction. In that circumstance, the deposit presently made after the judgment is rendered by the High Court to the reduced extent would not be of assistance as there would be change in the circumstances after more than a decade, as against what the position was in the year 200724. In that circumstance, when not only the availability of fund was satisfactorily explained but in a circumstance where the first plaintiff had entered into an agreement dated 23.10.2007 in favour of Shri Ali Khan in respect of the very same properties even before securing the sale deed in their favour, the bonafides would also become relevant when the specific performance as an equitable relief is taken into consideration. In that view, the Trial Court while declining the relief of specific performance has appropriately granted the decree for realisation of the sum of Rs. 75 Lakhs with interest at 9% per annum. To that extent though the Trial Court was justified, we find it necessary to protect the interest of the plaintiffs to recover the said amount. In that view, it is necessary to direct the defendants to refund the amount to the plaintiffs within a time frame, failing which the amount is to be paid with the higher rate of interest. Further, charge is to be created over the suit schedule properties to ensure repayment of the amount. Subject to the above the impugned judgment dated 21.08.2018 in RFA No. 344/2011 is liable to be set aside.
|
LAHARI SAKHAMURI Vs. SOBHAN KODALI | custody and guardianship of the two minor children will be taken by the US which has the exclusive jurisdiction to take the decision as the children happened to be the US citizens and further order been passed on the respondent?s emergency petition with special release in custody on 9 th March, 2018 permitting the respondent (Sobhan Kodali) to apply for US passports on behalf of the minor children without appellant (Lahari Sakhamuri) being mother?s consent. The appellant (Lahari Sakhamuri) cannot disregard the proceedings instituted at her instance before the US Court and she must participate in those proceedings by engaging solicitors of her choice to espouse her cause.49. The crucial factors which have to be kept in mind by the Courts for gauging the welfare of the children equally for the parent?s can be inter alia, delineated, such as (1) maturity and judgment; (2) mental stability; (3) ability to provide access to schools; (4) moral character; (5) ability to provide continuing involvement in the community; (6) financial sufficiency and last but not the least the factors involving relationship with the child, as opposed to characteristics of the parent as an individual.50. While dealing with the younger tender year doctrine, Janusz Korczar a famous Polish-Jewish educator & children?s author observed ?children cannot wait too long and they are not people of tomorrow, but are people of today. They have a right to be taken seriously, and to be treated with tenderness and respect. They should be allowed to grow into whoever they are meant to be -the unknown person inside each of them is our hope for the future.? Child rights may be limited but they should not be ignored or eliminated since children are in fact persons wherein all fundamental rights are guaranteed to them keeping in mind the best interest of the child and the various other factors which play a pivotal role in taking decision to which reference has been made taking note of the parental autonomy which courts do not easily discard.51. The doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of the minor child, citizenship of the parents and the child etc., cannot override the consideration of the best interest and the welfare of the child and that the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child. Taking a holistic consideration of the entire case, we are satisfied that all the criteria such as comity of courts, orders of foreign court having jurisdiction over the matter regarding custody of the children, citizenship of the spouse and the children, intimate connect, and above all, welfare and best interest of the minor children weigh in favour of the respondent (Sobhan Kodali) and that has been looked into by the High Court in the impugned judgment in detail. That needs no interference under Article 136 of the Constitution of India.52. Before we conclude, we would like to observe that it is much required to express our deep concern on the issue. Divorce and custody battles can become quagmire and it is heart wrenching to see that the innocent child is the ultimate sufferer who gets caught up in the legal and psychological battle between the parents. The eventful agreement about custody may often be a reflection of the parents? interests, rather than the child?s. The issue in a child custody dispute is what will become of the child, but ordinarily the child is not a true participant in the process. While the best-interests principle requires that the primary focus be on the interests of the child, the child ordinarily does not define those interests himself or does he have representation in the ordinary sense.53. The child?s psychological balance is deeply affected through the marital disruption and adjustment for changes is affected by the way parents continue positive relationships with their children. To focus on the child rights in case of parental conflict is a proactive step towards looking into this special situation demanding a specific articulation of child rights.54. The judicial resolution of a custody dispute may permanently affect or even end the parties? legal relationship but the social and psychological relationship will usually continue and it seems appropriate that a negotiated resolution between the parents is preferable from the child?s perspective for several reasons. A child?s future relationship with each of his parents may be better maintained and his existing relationship is less damaged by a negotiated settlement than by one imposed by a court after adversarial proceedings.55. In the present case, there is every possibility that the parties may reconcile and start over their relationship afresh, at least for the sake of happiness of their own off-spring if for no other reason. The parties are indeed mature and sensible enough to understand that the ordinary wear and tear of married life has to be put up in within the larger interests of their own happiness and of the healthy, normal growth and development of their offspring, whom destiny has entrusted to their joint parental care. Spouses must come over the temperamental disharmony which usually exists in every marriage, rather than magnifying it with impulsive desires and passions. Parents are not only caretakers, but they are instrumental in the development of their child?s social, emotional, cognitive and physical well-being and work harmoniously to give their children a happy home to which they are justly entitled to. We hope and trust that the parties will forget and forgive their differences and join hands together in providing the congenial atmosphere which may be good not for themselves but also for the development of their minor children.56. In our view, the best interest of the children being of paramount importance will be served if they return to US and enjoy their natural environment with love, care and attention of their parents including grandparents and to resume their school and be with their teachers and peers. | 0[ds]29. We have heard learned counsel for the parties and with their assistance perused the record and also the plentitude of judgments cited of this Court. Before we proceed, it will be appropriate to take note of what transpired between the hearing of the instant appeals. On 26 th March, 2018, this Court directed the appellant (Lahari Sakhamuri) and respondent (Sobhan Kodali) to remain personally present on the next date of hearing which was 9 th April, 2018. During pendency of the proceedings, respondent (Sobhan Kodali) was allowed to meet children possibly keeping in view the amicable solution, if possible, to be arrived at between the parties and at one stage by Order dated 12 th October, 2018, the parties were granted liberty to resolve their issues inter se amicably and to facilitate the parties in arriving at an amicable solution, a senior counsel was requested to mediate which was voluntarily accepted by the parties. Pursuant thereto, possibilities of settlements were explored and at one stage, settlement was also arrived at possibly acceptable to the parties as it reveals from the Order dated 29 th October, 2018 of this Court.What unfolded thereafter may not be appropriate for this Court to take notice but the fact remains that agreement arrived at between the parties could not be taken to its logical end. It would have been better and in the interest of the parties themselves to amicably resolve their differences for their better future but as they have failed to do so, the judicial process has to intervene to decide the case on merits based on judicial precedents.31. In the instant case, the facts on record clearly manifest that parties were residing in US since 2004-2005 and their marriage was solemnized in Hyderabad on 14 th March, 2008. Both the children were born in US on 14 th March, 2012 and 13 th October, 2014 and are US citizens with US passports. Notably, the appellant (Lahari Sakhamuri) filed application for divorce and custody of minor children in the US Court on 21 st December, 2016 and order came to be passed by the US Court on 21 st December, 2016. Despite that interim order, the appellant (Lahari Sakhamuri) came to India on 23 rd March, 2017 and within 20 days of her arrival in India, filed an application on 12 th April, 2017 for custody of minor children in the Family Court, Hyderabad concealing her application for custody filed in the US Court. She also did not disclose that an order came to be passed by the US Court against her dated 22 nd May, 2017 after hearing the counsel for the parties. In the given facts and circumstances, we find no difficulty in upholding the opinion of the High Court that the minor children were not ordinary residents of Hyderabad(India) as envisaged under Section 9(1) of the Guardians and Wards Act, 1890. Resultantly, the application for custody of minor children filed before the Family Court, Hyderabad is rightly rejected by the High Court in exercise of power under Order 7 Rule of CPC. At the same time, when the orders have been passed by the US Court, the parties cannot disregard the proceedings instituted before the US Court filed at the instance of the appellant (Lahari Sakhamuri) who is supposed to participate in those proceedings.32. The judgment relied upon by the learned counsel for the appellant of Jasmeet Kaur?s case(supra) may not be of any assistance for the reason that it was a case where one of the child was born in India which was one of the reason prevailed upon this Court to hold that principle of comity of courts or principle of forum convenience cannot determine the threshold bar of jurisdiction and when paramount consideration is the best interest of the child, it can be the subject-matter of final determination in proceedings and not under Order 7 Rule 11 CPC. In our considered view, the application for custody of minor children filed at the instance of the appellant was rightly rejected by the High Court under the impugned judgment, in consequence thereof, no legal proceedings in reference to custody of the minor children remain pending in India.33. The custody of minor children has been considered difficult in adjudication by the Courts apart from raising delicate issues, especially when the spouses are non-resident Indians(NRIs).This Court once again reiterated the principles of the closest concern, most intimate contact with the issues arising in the case, natural habitat of the minor child, best interest of the child and comity of Courts. This Court eventually directed the child to be taken to US from where he was removed to enable the parties to establish their right in the native state of the child, i.e. US.The essence of the judgment in Nithya Anand Raghavan?s case(supra) is that the doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of the minor child, citizenship of the parents and the child etc. cannot override the consideration of the best interest and the welfare of the child and that the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to theCourt, after taking into consideration totality of facts and circumstances, observed that the custody of the minor girl child to remain with the appellant mother until she attains the age of majority or the court of competent jurisdiction, trying the issue of custody of the minor.It was her own admission in the declaration form annexed to the application that no mode of domestic violence or abuse was ever subjected upon her or upon the minor children by the respondent (Sobhan Kodali). The respondent (Sobhan Kodali) had purchased to and fro tickets of the appellant (Lahari Sakhamuri) and of minor children as also of his mother in law who was staying together in their matrimonial home, US with return tickets of 24 th April, 2017 but after coming to India on 23 rd March, 2017, because of the alleged death of her maternal grandmother, the appellant (Lahari Sakhamuri) refused to return back and was advised to file a Guardianship Petition before the Family Court, Hyderabad on 12 th April, 2017 and took the ex-parte order concealing the material facts from the Family Court that such a petition is pending in US filed at her instance and there was an order passed on 21 st December, 2016 restraining both the parties not to change residence of the children which would affect the other parties ability to exercise custodial rights.47. It is not in dispute that both the minor children, from the very inception of their birth, till removal from the US on 23 rd March, 2017 were living with their parents in US. This fact was admitted by the appellant (Lahari Sakhamuri) also in the guardianship petition filed before the Family Court, Hyderabad and also in the divorce and custody petition filed by her in US and only after hearing learned counsel for the parties, order was passed by the US Court on 22 nd May, 2017 on the emergency custody petition granting temporary physical custody of the children with further direction to the appellant (Lahari Sakhamuri) to return along with the children to the jurisdiction of US Court on 2 nd June, 2017. In case she was aggrieved by the order dated 22 nd May, 2017 passed by the US Court after affording an opportunity of hearing which she contested through her Attorney, all the courses were available to her to assail the order of the Court. Since the appellant (Lahari Sakhamuri) failed in returning the children to the jurisdiction of the US Court despite order dated 22 nd May, 2017, there was no option left with the respondent (Sobhan Kodali) but to file a Habeas Corpus Petition and pray that the children be repatriated back to US in compliance of the order of the US Court.48. It is true that this Court has to keep in mind the best interest of the child as the paramount consideration. The observations of the US Court clearly show that principle of welfare of the children has been taken into consideration by the US Court in passing of the order as it reiterates that both the parties are necessary for proper upbringing of the children and the ultimate decision of custody and guardianship of the two minor children will be taken by the US which has the exclusive jurisdiction to take the decision as the children happened to be the US citizens and further order been passed on the respondent?s emergency petition with special release in custody on 9 th March, 2018 permitting the respondent (Sobhan Kodali) to apply for US passports on behalf of the minor children without appellant (Lahari Sakhamuri) being mother?s consent. The appellant (Lahari Sakhamuri) cannot disregard the proceedings instituted at her instance before the US Court and she must participate in those proceedings by engaging solicitors of her choice to espouse her cause.49. The crucial factors which have to be kept in mind by the Courts for gauging the welfare of the children equally for the parent?s can be inter alia, delineated, such as (1) maturity and judgment; (2) mental stability; (3) ability to provide access to schools; (4) moral character; (5) ability to provide continuing involvement in the community; (6) financial sufficiency and last but not the least the factors involving relationship with the child, as opposed to characteristics of the parent as an individual.50. While dealing with the younger tender year doctrine, Janusz Korczar a famous Polish-Jewish educator & children?s author observed ?children cannot wait too long and they are not people of tomorrow, but are people of today. They have a right to be taken seriously, and to be treated with tenderness and respect. They should be allowed to grow into whoever they are meant to be -the unknown person inside each of them is our hope for the future.? Child rights may be limited but they should not be ignored or eliminated since children are in fact persons wherein all fundamental rights are guaranteed to them keeping in mind the best interest of the child and the various other factors which play a pivotal role in taking decision to which reference has been made taking note of the parental autonomy which courts do not easily discard.51. The doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of the minor child, citizenship of the parents and the child etc., cannot override the consideration of the best interest and the welfare of the child and that the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child. Taking a holistic consideration of the entire case, we are satisfied that all the criteria such as comity of courts, orders of foreign court having jurisdiction over the matter regarding custody of the children, citizenship of the spouse and the children, intimate connect, and above all, welfare and best interest of the minor children weigh in favour of the respondent (Sobhan Kodali) and that has been looked into by the High Court in the impugned judgment in detail. That needs no interference under Article 136 of the Constitution of India.52. Before we conclude, we would like to observe that it is much required to express our deep concern on the issue. Divorce and custody battles can become quagmire and it is heart wrenching to see that the innocent child is the ultimate sufferer who gets caught up in the legal and psychological battle between the parents. The eventful agreement about custody may often be a reflection of the parents? interests, rather than the child?s. The issue in a child custody dispute is what will become of the child, but ordinarily the child is not a true participant in the process. While the best-interests principle requires that the primary focus be on the interests of the child, the child ordinarily does not define those interests himself or does he have representation in the ordinary sense.53. The child?s psychological balance is deeply affected through the marital disruption and adjustment for changes is affected by the way parents continue positive relationships with their children. To focus on the child rights in case of parental conflict is a proactive step towards looking into this special situation demanding a specific articulation of child rights.54. The judicial resolution of a custody dispute may permanently affect or even end the parties? legal relationship but the social and psychological relationship will usually continue and it seems appropriate that a negotiated resolution between the parents is preferable from the child?s perspective for several reasons. A child?s future relationship with each of his parents may be better maintained and his existing relationship is less damaged by a negotiated settlement than by one imposed by a court after adversarial proceedings.55. In the present case, there is every possibility that the parties may reconcile and start over their relationship afresh, at least for the sake of happiness of their own off-spring if for no other reason. The parties are indeed mature and sensible enough to understand that the ordinary wear and tear of married life has to be put up in within the larger interests of their own happiness and of the healthy, normal growth and development of their offspring, whom destiny has entrusted to their joint parental care. Spouses must come over the temperamental disharmony which usually exists in every marriage, rather than magnifying it with impulsive desires and passions. Parents are not only caretakers, but they are instrumental in the development of their child?s social, emotional, cognitive and physical well-being and work harmoniously to give their children a happy home to which they are justly entitled to. We hope and trust that the parties will forget and forgive their differences and join hands together in providing the congenial atmosphere which may be good not for themselves but also for the development of their minor children.56. In our view, the best interest of the children being of paramount importance will be served if they return to US and enjoy their natural environment with love, care and attention of their parents including grandparents and to resume their school and be with their teachers and peers. | 0 | 13,014 | 2,660 | ### 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:
custody and guardianship of the two minor children will be taken by the US which has the exclusive jurisdiction to take the decision as the children happened to be the US citizens and further order been passed on the respondent?s emergency petition with special release in custody on 9 th March, 2018 permitting the respondent (Sobhan Kodali) to apply for US passports on behalf of the minor children without appellant (Lahari Sakhamuri) being mother?s consent. The appellant (Lahari Sakhamuri) cannot disregard the proceedings instituted at her instance before the US Court and she must participate in those proceedings by engaging solicitors of her choice to espouse her cause.49. The crucial factors which have to be kept in mind by the Courts for gauging the welfare of the children equally for the parent?s can be inter alia, delineated, such as (1) maturity and judgment; (2) mental stability; (3) ability to provide access to schools; (4) moral character; (5) ability to provide continuing involvement in the community; (6) financial sufficiency and last but not the least the factors involving relationship with the child, as opposed to characteristics of the parent as an individual.50. While dealing with the younger tender year doctrine, Janusz Korczar a famous Polish-Jewish educator & children?s author observed ?children cannot wait too long and they are not people of tomorrow, but are people of today. They have a right to be taken seriously, and to be treated with tenderness and respect. They should be allowed to grow into whoever they are meant to be -the unknown person inside each of them is our hope for the future.? Child rights may be limited but they should not be ignored or eliminated since children are in fact persons wherein all fundamental rights are guaranteed to them keeping in mind the best interest of the child and the various other factors which play a pivotal role in taking decision to which reference has been made taking note of the parental autonomy which courts do not easily discard.51. The doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of the minor child, citizenship of the parents and the child etc., cannot override the consideration of the best interest and the welfare of the child and that the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child. Taking a holistic consideration of the entire case, we are satisfied that all the criteria such as comity of courts, orders of foreign court having jurisdiction over the matter regarding custody of the children, citizenship of the spouse and the children, intimate connect, and above all, welfare and best interest of the minor children weigh in favour of the respondent (Sobhan Kodali) and that has been looked into by the High Court in the impugned judgment in detail. That needs no interference under Article 136 of the Constitution of India.52. Before we conclude, we would like to observe that it is much required to express our deep concern on the issue. Divorce and custody battles can become quagmire and it is heart wrenching to see that the innocent child is the ultimate sufferer who gets caught up in the legal and psychological battle between the parents. The eventful agreement about custody may often be a reflection of the parents? interests, rather than the child?s. The issue in a child custody dispute is what will become of the child, but ordinarily the child is not a true participant in the process. While the best-interests principle requires that the primary focus be on the interests of the child, the child ordinarily does not define those interests himself or does he have representation in the ordinary sense.53. The child?s psychological balance is deeply affected through the marital disruption and adjustment for changes is affected by the way parents continue positive relationships with their children. To focus on the child rights in case of parental conflict is a proactive step towards looking into this special situation demanding a specific articulation of child rights.54. The judicial resolution of a custody dispute may permanently affect or even end the parties? legal relationship but the social and psychological relationship will usually continue and it seems appropriate that a negotiated resolution between the parents is preferable from the child?s perspective for several reasons. A child?s future relationship with each of his parents may be better maintained and his existing relationship is less damaged by a negotiated settlement than by one imposed by a court after adversarial proceedings.55. In the present case, there is every possibility that the parties may reconcile and start over their relationship afresh, at least for the sake of happiness of their own off-spring if for no other reason. The parties are indeed mature and sensible enough to understand that the ordinary wear and tear of married life has to be put up in within the larger interests of their own happiness and of the healthy, normal growth and development of their offspring, whom destiny has entrusted to their joint parental care. Spouses must come over the temperamental disharmony which usually exists in every marriage, rather than magnifying it with impulsive desires and passions. Parents are not only caretakers, but they are instrumental in the development of their child?s social, emotional, cognitive and physical well-being and work harmoniously to give their children a happy home to which they are justly entitled to. We hope and trust that the parties will forget and forgive their differences and join hands together in providing the congenial atmosphere which may be good not for themselves but also for the development of their minor children.56. In our view, the best interest of the children being of paramount importance will be served if they return to US and enjoy their natural environment with love, care and attention of their parents including grandparents and to resume their school and be with their teachers and peers.
### Response:
0
### Explanation:
custody and guardianship of the two minor children will be taken by the US which has the exclusive jurisdiction to take the decision as the children happened to be the US citizens and further order been passed on the respondent?s emergency petition with special release in custody on 9 th March, 2018 permitting the respondent (Sobhan Kodali) to apply for US passports on behalf of the minor children without appellant (Lahari Sakhamuri) being mother?s consent. The appellant (Lahari Sakhamuri) cannot disregard the proceedings instituted at her instance before the US Court and she must participate in those proceedings by engaging solicitors of her choice to espouse her cause.49. The crucial factors which have to be kept in mind by the Courts for gauging the welfare of the children equally for the parent?s can be inter alia, delineated, such as (1) maturity and judgment; (2) mental stability; (3) ability to provide access to schools; (4) moral character; (5) ability to provide continuing involvement in the community; (6) financial sufficiency and last but not the least the factors involving relationship with the child, as opposed to characteristics of the parent as an individual.50. While dealing with the younger tender year doctrine, Janusz Korczar a famous Polish-Jewish educator & children?s author observed ?children cannot wait too long and they are not people of tomorrow, but are people of today. They have a right to be taken seriously, and to be treated with tenderness and respect. They should be allowed to grow into whoever they are meant to be -the unknown person inside each of them is our hope for the future.? Child rights may be limited but they should not be ignored or eliminated since children are in fact persons wherein all fundamental rights are guaranteed to them keeping in mind the best interest of the child and the various other factors which play a pivotal role in taking decision to which reference has been made taking note of the parental autonomy which courts do not easily discard.51. The doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of the minor child, citizenship of the parents and the child etc., cannot override the consideration of the best interest and the welfare of the child and that the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child. Taking a holistic consideration of the entire case, we are satisfied that all the criteria such as comity of courts, orders of foreign court having jurisdiction over the matter regarding custody of the children, citizenship of the spouse and the children, intimate connect, and above all, welfare and best interest of the minor children weigh in favour of the respondent (Sobhan Kodali) and that has been looked into by the High Court in the impugned judgment in detail. That needs no interference under Article 136 of the Constitution of India.52. Before we conclude, we would like to observe that it is much required to express our deep concern on the issue. Divorce and custody battles can become quagmire and it is heart wrenching to see that the innocent child is the ultimate sufferer who gets caught up in the legal and psychological battle between the parents. The eventful agreement about custody may often be a reflection of the parents? interests, rather than the child?s. The issue in a child custody dispute is what will become of the child, but ordinarily the child is not a true participant in the process. While the best-interests principle requires that the primary focus be on the interests of the child, the child ordinarily does not define those interests himself or does he have representation in the ordinary sense.53. The child?s psychological balance is deeply affected through the marital disruption and adjustment for changes is affected by the way parents continue positive relationships with their children. To focus on the child rights in case of parental conflict is a proactive step towards looking into this special situation demanding a specific articulation of child rights.54. The judicial resolution of a custody dispute may permanently affect or even end the parties? legal relationship but the social and psychological relationship will usually continue and it seems appropriate that a negotiated resolution between the parents is preferable from the child?s perspective for several reasons. A child?s future relationship with each of his parents may be better maintained and his existing relationship is less damaged by a negotiated settlement than by one imposed by a court after adversarial proceedings.55. In the present case, there is every possibility that the parties may reconcile and start over their relationship afresh, at least for the sake of happiness of their own off-spring if for no other reason. The parties are indeed mature and sensible enough to understand that the ordinary wear and tear of married life has to be put up in within the larger interests of their own happiness and of the healthy, normal growth and development of their offspring, whom destiny has entrusted to their joint parental care. Spouses must come over the temperamental disharmony which usually exists in every marriage, rather than magnifying it with impulsive desires and passions. Parents are not only caretakers, but they are instrumental in the development of their child?s social, emotional, cognitive and physical well-being and work harmoniously to give their children a happy home to which they are justly entitled to. We hope and trust that the parties will forget and forgive their differences and join hands together in providing the congenial atmosphere which may be good not for themselves but also for the development of their minor children.56. In our view, the best interest of the children being of paramount importance will be served if they return to US and enjoy their natural environment with love, care and attention of their parents including grandparents and to resume their school and be with their teachers and peers.
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B.N. Shivanna Vs. Advanta India Limited & Another | (2010) 7 SCC 592 , this Court has considered the earlier judgments and held that in a rare case, even if the cognizance deemed to have been taken in terms of the Supreme Court Rules, without the consent of the Attorney General or the Solicitor General, the proceedings must be held to be maintainable in view of the fact that the issue involved in the proceedings had far reaching greater ramifications and impact on the administration of justice and on the justice delivery system and the credibility of the court in the eyes of general public than what was under consideration before this Court in earlier cases. 15. In the instant case, the question of whether the matter had been placed before the Chief Justice in Chambers is a question of fact. The issue has not been agitated before the High Court, rather the complaint filed by the Registrar General of the High Court makes it clear that the complaint itself has been filed on behalf of the High Court by the Advocate General. It is evident from the record that case CCC(Crl.) No. 12 of 2002 has been filed by the Registrar General of the High Court of Karnataka (suo motu) through the Advocate General of the State. Therefore, the issue does not require any further consideration so far as the procedural aspects are concerned. Thus, in view of the above, the objection raised by the appellant is mere hyper-technical and does not want further consideration. 16. It is evident that the charges had been framed in accordance with law on 22.7.2002 and that the appellant has been given full opportunity to defend himself. All the documents placed before the High Court have been appreciated and considered. 17. So far as merit is concerned, we have been taken to various documents and to the evidence of the witnesses. There are certain documents to show that the appellant on certain occasions has also rendered a good service to the company. Some documents are also on record to show that some officials had an intention to misappropriate the funds of the company for their personal gain with the connivance of the appellant. However, there is nothing on record to show that they could succeed to any extent. Therefore, the defence taken by the appellant remains unsubstantiated. In view of the material on record, it is evident that the huge amount of money has been collected by the appellant in the name of his mother-in-law, Smt. S. Gauri, the alleged stamp vendor, and the appellant has been the beneficiary thereof as he had operated the Bank Account in her name. 18. In Re: Bineet Kumar Singh, (2001) 5 SCC 501 , while dealing with a case of similar nature, this Court held as under: "The sole object of the court wielding its power to punish for contempt is always for the course of administration of justice. Nothing is more incumbent upon the courts of justice than to preserve their proceedings from being misrepresented, nor is there anything more pernicious when the order of the court is forged and produced to gain undue advantage. Criminal contempt has been defined in Section 2(c) to mean interference with the administration of justice in any manner. A false or misleading or a wrong statement deliberately and wilfully made by a party to the proceedings to obtain a favourable order would undoubtedly tantamount to interference with the due course of judicial proceedings. When a person is found to have utilised an order of a court which he or she knows to be incorrect for conferring benefit on persons who are not entitled to the same, the very utilisation of the fabricated order by the person concerned would be sufficient to hold him/her guilty of contempt, irrespective of the fact whether he or she himself or herself is the author of fabrication....." (Emphasis added). 19. It is evident from the evidence on record that the appellant had been the beneficiary of fraud alleged in these cases. Therefore, in view of the law referred to hereinabove, he is guilty of committing contempt of court. The appellant had been an employee of the respondent company and because of that relationship he had been retained as an Advocate and he has a duty towards his clients to behave in an appropriate manner and to protect the dignity of the court. The conduct of the appellant has been reprehensible and it is tantamount to as if the fence established to protect the crop starting to eat the crop itself. Thus, such misconduct has to be dealt with, with a heavy hand. 20. We do find any force in the submissions made by learned counsel for the appellant that the conviction of the appellant in these cases would prejudice his cause in the pending criminal trial for the reason that both cases are separate and for offences of a different nature. It was the duty of the appellant to protect the dignity of the court through which he has earned his livelihood. 21. The submission made by learned counsel for the appellant that both complaints could not have been clubbed together and the evidence recorded in the case lodged by the respondent company could not have been read in suo motu contempt proceedings initiated by the High Court, is preposterous, for the reason that they were not cross cases and in both the cases, criminal proceedings had been initiated on the basis of the same documents and the same allegations. It is a case of betrayal of faith by a lawyer of his clients, in a case of professional engagement. 22. We also do not find any force in the submission advanced on behalf of the appellant that he has already served 36 days in jail, thus, the punishment imposed by the High Court may be reduced. Considering the gravity of the charges, such a course is not warranted and no lenient view is permissible in the facts and circumstances of the cases. | 0[ds]The issue has not been agitated before the High Court, rather the complaint filed by the Registrar General of the High Court makes it clear that the complaint itself has been filed on behalf of the High Court by the Advocate General. It is evident from the record that case CCC(Crl.) No. 12 of 2002 has been filed by the Registrar General of the High Court of Karnataka (suo motu) through the Advocate General of the State. Therefore, the issue does not require any further consideration so far as the procedural aspects are concerned. Thus, in view of the above, the objection raised by the appellant is mere hyper-technical and does not want furtherare certain documents to show that the appellant on certain occasions has also rendered a good service to the company. Some documents are also on record to show that some officials had an intention to misappropriate the funds of the company for their personal gain with the connivance of the appellant. However, there is nothing on record to show that they could succeed to any extent. Therefore, the defence taken by the appellant remains unsubstantiated. In view of the material on record, it is evident that the huge amount of money has been collected by the appellant in the name of his mother-in-law, Smt. S. Gauri, the alleged stamp vendor, and the appellant has been the beneficiary thereof as he had operated the Bank Account in herappellant had been the beneficiary of fraud alleged in these cases. Therefore, in view of the law referred to hereinabove, he is guilty of committing contempt of court. The appellant had been an employee of the respondent company and because of that relationship he had been retained as an Advocate and he has a duty towards his clients to behave in an appropriate manner and to protect the dignity of the court. The conduct of the appellant has been reprehensible and it is tantamount to as if the fence established to protect the crop starting to eat the crop itself. Thus, such misconduct has to be dealt with, with a heavy hand. | 0 | 3,420 | 389 | ### 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:
(2010) 7 SCC 592 , this Court has considered the earlier judgments and held that in a rare case, even if the cognizance deemed to have been taken in terms of the Supreme Court Rules, without the consent of the Attorney General or the Solicitor General, the proceedings must be held to be maintainable in view of the fact that the issue involved in the proceedings had far reaching greater ramifications and impact on the administration of justice and on the justice delivery system and the credibility of the court in the eyes of general public than what was under consideration before this Court in earlier cases. 15. In the instant case, the question of whether the matter had been placed before the Chief Justice in Chambers is a question of fact. The issue has not been agitated before the High Court, rather the complaint filed by the Registrar General of the High Court makes it clear that the complaint itself has been filed on behalf of the High Court by the Advocate General. It is evident from the record that case CCC(Crl.) No. 12 of 2002 has been filed by the Registrar General of the High Court of Karnataka (suo motu) through the Advocate General of the State. Therefore, the issue does not require any further consideration so far as the procedural aspects are concerned. Thus, in view of the above, the objection raised by the appellant is mere hyper-technical and does not want further consideration. 16. It is evident that the charges had been framed in accordance with law on 22.7.2002 and that the appellant has been given full opportunity to defend himself. All the documents placed before the High Court have been appreciated and considered. 17. So far as merit is concerned, we have been taken to various documents and to the evidence of the witnesses. There are certain documents to show that the appellant on certain occasions has also rendered a good service to the company. Some documents are also on record to show that some officials had an intention to misappropriate the funds of the company for their personal gain with the connivance of the appellant. However, there is nothing on record to show that they could succeed to any extent. Therefore, the defence taken by the appellant remains unsubstantiated. In view of the material on record, it is evident that the huge amount of money has been collected by the appellant in the name of his mother-in-law, Smt. S. Gauri, the alleged stamp vendor, and the appellant has been the beneficiary thereof as he had operated the Bank Account in her name. 18. In Re: Bineet Kumar Singh, (2001) 5 SCC 501 , while dealing with a case of similar nature, this Court held as under: "The sole object of the court wielding its power to punish for contempt is always for the course of administration of justice. Nothing is more incumbent upon the courts of justice than to preserve their proceedings from being misrepresented, nor is there anything more pernicious when the order of the court is forged and produced to gain undue advantage. Criminal contempt has been defined in Section 2(c) to mean interference with the administration of justice in any manner. A false or misleading or a wrong statement deliberately and wilfully made by a party to the proceedings to obtain a favourable order would undoubtedly tantamount to interference with the due course of judicial proceedings. When a person is found to have utilised an order of a court which he or she knows to be incorrect for conferring benefit on persons who are not entitled to the same, the very utilisation of the fabricated order by the person concerned would be sufficient to hold him/her guilty of contempt, irrespective of the fact whether he or she himself or herself is the author of fabrication....." (Emphasis added). 19. It is evident from the evidence on record that the appellant had been the beneficiary of fraud alleged in these cases. Therefore, in view of the law referred to hereinabove, he is guilty of committing contempt of court. The appellant had been an employee of the respondent company and because of that relationship he had been retained as an Advocate and he has a duty towards his clients to behave in an appropriate manner and to protect the dignity of the court. The conduct of the appellant has been reprehensible and it is tantamount to as if the fence established to protect the crop starting to eat the crop itself. Thus, such misconduct has to be dealt with, with a heavy hand. 20. We do find any force in the submissions made by learned counsel for the appellant that the conviction of the appellant in these cases would prejudice his cause in the pending criminal trial for the reason that both cases are separate and for offences of a different nature. It was the duty of the appellant to protect the dignity of the court through which he has earned his livelihood. 21. The submission made by learned counsel for the appellant that both complaints could not have been clubbed together and the evidence recorded in the case lodged by the respondent company could not have been read in suo motu contempt proceedings initiated by the High Court, is preposterous, for the reason that they were not cross cases and in both the cases, criminal proceedings had been initiated on the basis of the same documents and the same allegations. It is a case of betrayal of faith by a lawyer of his clients, in a case of professional engagement. 22. We also do not find any force in the submission advanced on behalf of the appellant that he has already served 36 days in jail, thus, the punishment imposed by the High Court may be reduced. Considering the gravity of the charges, such a course is not warranted and no lenient view is permissible in the facts and circumstances of the cases.
### Response:
0
### Explanation:
The issue has not been agitated before the High Court, rather the complaint filed by the Registrar General of the High Court makes it clear that the complaint itself has been filed on behalf of the High Court by the Advocate General. It is evident from the record that case CCC(Crl.) No. 12 of 2002 has been filed by the Registrar General of the High Court of Karnataka (suo motu) through the Advocate General of the State. Therefore, the issue does not require any further consideration so far as the procedural aspects are concerned. Thus, in view of the above, the objection raised by the appellant is mere hyper-technical and does not want furtherare certain documents to show that the appellant on certain occasions has also rendered a good service to the company. Some documents are also on record to show that some officials had an intention to misappropriate the funds of the company for their personal gain with the connivance of the appellant. However, there is nothing on record to show that they could succeed to any extent. Therefore, the defence taken by the appellant remains unsubstantiated. In view of the material on record, it is evident that the huge amount of money has been collected by the appellant in the name of his mother-in-law, Smt. S. Gauri, the alleged stamp vendor, and the appellant has been the beneficiary thereof as he had operated the Bank Account in herappellant had been the beneficiary of fraud alleged in these cases. Therefore, in view of the law referred to hereinabove, he is guilty of committing contempt of court. The appellant had been an employee of the respondent company and because of that relationship he had been retained as an Advocate and he has a duty towards his clients to behave in an appropriate manner and to protect the dignity of the court. The conduct of the appellant has been reprehensible and it is tantamount to as if the fence established to protect the crop starting to eat the crop itself. Thus, such misconduct has to be dealt with, with a heavy hand.
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Munna Lal Jain Vs. Vipin Kumar Sharma | time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.” 9. The deduction ordinarily in the case of a bachelor at 50 % was approved recently by a three-Judge Bench decision in Reshma Kumari and others v. Madan Mohan and another (2013) 9 SCC 65 ), holding that the standard fixed in Sarla Verma (supra) on the aspect of deduction for personal and living expenses … “must ordinarily be followed unless a case for departure in the circumstances noted in the preceding paragraph is made out”. Preceding paragraph-41 reads as follows: “41. The above does provide guidance for the appropriate deduction for personal and living expenses. One must bear in mind that the proportion of a man’s net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependent members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants.” 10. In the case before us, there are no such exceptional circumstances or compelling reasons for deviation on the basis of evidence and therefore deduction of 50% towards the personal and living expenses is not to be disturbed. 11. As far as future prospects are concerned, in Rajesh and others v. Rajbir Singh and others ((2013) 9 SCC 54 ), a three-Judge Bench of this Court held that in case of self-employed persons also, if the deceased victim is below 40 years, there must be addition of 50% to the actual income of the deceased while computing future prospects. To quote: “8. Since, the Court in Santosh Devi case actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma case and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years.” The deceased being of the age of 30 years, 50% is the required addition. 12. The remaining question is only on multiplier. The High Court following Santosh Devi (supra), has taken 13 as the multiplier. Whether the multiplier should depend on the age of the dependants or that of the deceased, has been hanging fire for sometime; but that has been given a quietus by another three-Judge Bench decision in Reshma Kumari (supra). It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the age of the deceased but as far as that of dependants is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average, etc., is to be taken. To quote: “36. In Sarla Verma, this Court has endeavoured to simplify the otherwise complex exercise of assessment of loss of dependency and determination of compensation in a claim made under Section 166. It has been rightly stated in Sarla Verma that the claimants in case of death claim for the purposes of compensation must establish (a) age of the deceased; (b) income of the deceased; and (c) the number of dependants. To arrive at the loss of dependency, the Tribunal must consider (i) additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. We do not think it is necessary for us to revisit the law on the point as we are in full agreement with the view in Sarla Verma.” 13. In Sarla Verma (supra), at paragraph-19, a two-Judge Bench dealt with this aspect in Step 2. To quote: “19. xxxxxx xxxStep 2 (Ascertaining the multiplier)Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.” 14. The multiplier, in the case of the age of the deceased between 26 to 30 years is 17. There is no dispute or grievance on fixation of monthly income as Rs.12,000.00 by the High Court.15. Thus, the appellants are entitled to compensation of Rs.18,36,000.00 towards loss of dependency, which is calculated as follows –CALCULATIONTOTAL (IN RS.)Rs.12,000/- (Monthly Income) add [50% of Rs.12,000/-(Future Prospects)] =18,000.0050% of [Rs.18,000/- (Deductions)] =9,000.00 [Rs.9,000/-] multiply by [12(Annual Income)] =1,08,000.00 [Rs.1,08,000/-] multiply by [17(Multiplier)] =18,36,000.00There shall be no change on the amounts awarded by the High Court on other heads or on rate of interest. | 1[ds]10. In the case before us, there are no such exceptional circumstances or compelling reasons for deviation on the basis of evidence and therefore deduction of 50% towards the personal and living expenses is not to bereason appears to be that there is certainty with regard to the age of the deceased but as far as that of dependants is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average, etc., is to beThe multiplier, in the case of the age of the deceased between 26 to 30 years is 17. There is no dispute or grievance on fixation of monthly income as Rs.12,000.00 by the High Court.15. Thus, the appellants are entitled to compensation of Rs.18,36,000.00 towards loss of dependency, which is calculated as follows –CALCULATIONTOTAL (IN RS.)Rs.12,000/(Monthly Income) add [50% ofProspects)] =18,000.0050% of [Rs.18,000/] multiply by [12(Annual Income)]multiply by [17(Multiplier)] =18,36,000.00There shall be no change on the amounts awarded by the High Court on other heads or on rate of interest. | 1 | 1,666 | 216 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.” 9. The deduction ordinarily in the case of a bachelor at 50 % was approved recently by a three-Judge Bench decision in Reshma Kumari and others v. Madan Mohan and another (2013) 9 SCC 65 ), holding that the standard fixed in Sarla Verma (supra) on the aspect of deduction for personal and living expenses … “must ordinarily be followed unless a case for departure in the circumstances noted in the preceding paragraph is made out”. Preceding paragraph-41 reads as follows: “41. The above does provide guidance for the appropriate deduction for personal and living expenses. One must bear in mind that the proportion of a man’s net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependent members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants.” 10. In the case before us, there are no such exceptional circumstances or compelling reasons for deviation on the basis of evidence and therefore deduction of 50% towards the personal and living expenses is not to be disturbed. 11. As far as future prospects are concerned, in Rajesh and others v. Rajbir Singh and others ((2013) 9 SCC 54 ), a three-Judge Bench of this Court held that in case of self-employed persons also, if the deceased victim is below 40 years, there must be addition of 50% to the actual income of the deceased while computing future prospects. To quote: “8. Since, the Court in Santosh Devi case actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma case and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years.” The deceased being of the age of 30 years, 50% is the required addition. 12. The remaining question is only on multiplier. The High Court following Santosh Devi (supra), has taken 13 as the multiplier. Whether the multiplier should depend on the age of the dependants or that of the deceased, has been hanging fire for sometime; but that has been given a quietus by another three-Judge Bench decision in Reshma Kumari (supra). It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the age of the deceased but as far as that of dependants is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average, etc., is to be taken. To quote: “36. In Sarla Verma, this Court has endeavoured to simplify the otherwise complex exercise of assessment of loss of dependency and determination of compensation in a claim made under Section 166. It has been rightly stated in Sarla Verma that the claimants in case of death claim for the purposes of compensation must establish (a) age of the deceased; (b) income of the deceased; and (c) the number of dependants. To arrive at the loss of dependency, the Tribunal must consider (i) additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. We do not think it is necessary for us to revisit the law on the point as we are in full agreement with the view in Sarla Verma.” 13. In Sarla Verma (supra), at paragraph-19, a two-Judge Bench dealt with this aspect in Step 2. To quote: “19. xxxxxx xxxStep 2 (Ascertaining the multiplier)Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.” 14. The multiplier, in the case of the age of the deceased between 26 to 30 years is 17. There is no dispute or grievance on fixation of monthly income as Rs.12,000.00 by the High Court.15. Thus, the appellants are entitled to compensation of Rs.18,36,000.00 towards loss of dependency, which is calculated as follows –CALCULATIONTOTAL (IN RS.)Rs.12,000/- (Monthly Income) add [50% of Rs.12,000/-(Future Prospects)] =18,000.0050% of [Rs.18,000/- (Deductions)] =9,000.00 [Rs.9,000/-] multiply by [12(Annual Income)] =1,08,000.00 [Rs.1,08,000/-] multiply by [17(Multiplier)] =18,36,000.00There shall be no change on the amounts awarded by the High Court on other heads or on rate of interest.
### Response:
1
### Explanation:
10. In the case before us, there are no such exceptional circumstances or compelling reasons for deviation on the basis of evidence and therefore deduction of 50% towards the personal and living expenses is not to bereason appears to be that there is certainty with regard to the age of the deceased but as far as that of dependants is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average, etc., is to beThe multiplier, in the case of the age of the deceased between 26 to 30 years is 17. There is no dispute or grievance on fixation of monthly income as Rs.12,000.00 by the High Court.15. Thus, the appellants are entitled to compensation of Rs.18,36,000.00 towards loss of dependency, which is calculated as follows –CALCULATIONTOTAL (IN RS.)Rs.12,000/(Monthly Income) add [50% ofProspects)] =18,000.0050% of [Rs.18,000/] multiply by [12(Annual Income)]multiply by [17(Multiplier)] =18,36,000.00There shall be no change on the amounts awarded by the High Court on other heads or on rate of interest.
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VODAFONE IDEA LTD. (EARLIER KNOWN AS VODAFONE MOBILE SERVICES LIMITED) Vs. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 26 (2) & ANR. | suit has been instituted by the plaintiff in the Judge, Small Cause Court claiming the right and interest in the immovable property. 35. A statutory provision containing non obstante clause has to be given full effect. This Court in Union of India v. G.M. Kokil (1984) Supp. SCC 196 has laid down in para 11 as below: (SCC p. 203) 11. … It is well known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. Thus the non obstante clause in Section 70, namely, notwithstanding anything contained in that Act must mean notwithstanding anything to the contrary contained in that Act and as such it must refer to the exempting provisions which would be contrary to the general applicability of the Act. … 18. In the premises, we hold that in respect of Assessment Years ending on 31 st March 2017 or before, if a notice was issued in conformity with the requirements stated in sub-section (2) of Section 143 of the Act, it shall not be necessary to process the refund under sub- section (1) of Section 143 of the Act and that the requirement to process the return shall stand overridden. 19. We must now deal with the issue whether any intimation is required to be given to the assessee that because of initiation of proceedings pursuant to notice under sub-section (2) of Section 143 of the Act processing of return in terms of sub-section (1) of Section 143 of the Act, would stand deferred. The processing of return in terms of sub- section (1A) of Section 143 of the Act is to be done through centralized processing and as stated earlier, the scope of processing under sub- section (1) of Section 143 of the Act is purely summary in character. Once deeper scrutiny is undertaken and the matter is being considered from the perspective whether there is any avoidance of tax in any manner, issuance of notice under sub-section (2) itself is sufficient indication. Sub-section (1D) of Section 143 of the Act does not contemplate either issuance of any such intimation or further application of mind that the processing must be kept in abeyance. It would not, therefore, be proper to read into said provision the requirement to send a separate intimation. In our view, issuance of notice under sub-section (2) of Section 143 is enough to trigger the required consequence. Any other intimation is neither contemplated by the statute nor would it achieve any purpose. 20. Consequently, the submission that the intimation dated 23.07.2018 must be held to be invalid, inter alia on the ground that it was issued well after the period within which the return was required to be processed under sub-section (1) of Section 143 of the Act, must be rejected. 21. However, insofar as returns filed in respect of assessment year commencing on or after the 1 st April, 2017, a different regime has been contemplated by the Parliament. Section 241-A of the Act requires a separate recording of satisfaction on part of the Assessing Officer that having regard to the fact that a notice has been issued under sub-section (2) of Section 143, the grant of refund is likely to adversely affect the revenue; whereafter, with the previous approval of the Principal Commissioner or Commissioner and for reasons to be recorded in writing, the refund can be withheld. Since the statute now envisages exercise of power of withholding of refund in a particular manner, it goes without saying that for assessment year commencing after 01.04.2017 the requirements of Section 241-A of the Act must be satisfied. 22. We will, therefore, have to see whether insofar as AY 2017-18 is concerned, the order dated 14.03.2019 satisfies the required statutory parameters or not. In terms of second proviso to sub-section (1) of Section 143 of the Act, the required intimation under said sub-section must be given before the expiry of one year from the end of the financial year in which the return is made. In respect of AY 2017-18, the return having been filed on 25.11.2017, period available in terms of said second proviso was upto 31.03.2019, without taking into account the fact that revised return was filed on 13.07.2018. In the present case, the exercise of power on 14.03.2019 was not only after issuance of notice under sub-section (2) of Section 143 and after recording due satisfaction in terms of Section 241-A of the Act, but was also well within the period contemplated by sub-section (1) of Section 143 of the Act for causing due intimation. Whether the satisfaction recorded in terms of said Section 241-A of the Act was otherwise correct or not and whether case for withholding of refund was made out or not, are not the issues that arise for our consideration. For the present purposes, whether exercise of power is facially in conformity with the statutory provisions is the issue and we are satisfied that there is nothing in the exercise of power that led to the passing of the order dated 14.03.2019 which could be said to have violated any statutory requirements. 23. Insofar as AY 2014-15 is concerned, final assessment order passed under Section 143(3) of the Act indicates that the appellant is entitled to refund of Rs.733 Crores; while for AY 2015-16 there is a demand of Rs.582 Crores. During the course of hearing, it was suggested on behalf of the respondents that demands in respect of earlier assessment years including the liability as a result of order dated 28.12.2019 as referred to in para 5.1 hereinabove being outstanding, the respondents would be entitled to invoke the requisite power under Section 245 of the Act to set off the amount of refund payable in respect of AY 2014-15 against tax remaining payable. | 0[ds]13. The nature of exercise of power under sub-section (1) as against that under sub-sections (2) and (3) is thus completely different. In the former case, the matter is processed, only to check whether any apparent inconsistencies are evident on the face of the return and connected material which may call for any adjustment while in the latter case, the matter is scrutinized after taking into account such evidence as the assessee may produce. The exercise in the latter case is to ensure that there is no understating of income or overstating of loss or under- payment of the tax in any manner. In other words, the veracity of the return is checked threadbare rather than considering mere apparent inconsistencies from the return. Thus, the nature of power under these two provisions, as found by this Court in CIT v. Gujarat Electricity Board (2003) 260 ITR 84 continues to bear the same distinctionThe power under sub-section (1) of Section 143 of the Act is summary in nature designed to cause adjustments which are apparent from the return while that under sub-sections (2) and (3) is to scrutinize the return and cause deeper probe to arrive at the correct determination of the liability of the assessee14. The exercise of power under Sub-sections (2) and (3) of Section 143 of the Act is thus premised on non-acceptance of what is evident from the return itself and to ensure that there is no avoidance of tax in any manner. The dimension of such power is far greater and deeper than mere adjustments to be made in respect of what is available from the return. Once such scrutiny is undertaken and proceedings are initiated by issuance of a notice under sub-section (2) of Section 143, it would be anomalous and incongruent that while such proceedings so initiated are pending, the return be processed under sub-section (1) of Section 143, which may in a given case, entail payment of refund. Logically, the outcome of the exercise initiated through notice under sub-section (2) of Section 143, must determine whether any refund is due and payable. If the return itself is under probe and scrutiny, such return cannot be the foundation to sustain a claim for refund till such scrutiny is not complete. Considering the nature of power exercisable under these two limbs of Section 143, the inescapable conclusion is that the processing of return under sub-section (1) of Section 143 must await the further exercise of power of scrutiny assessment under sub-sections (2) and (3) of Section 143. If the power under sub-section (2) of Section 143 of the Act is initiated in a manner known to law, there cannot be any insistence that the processing under sub-section (1) of Section 143 be completed and refund be made before the scrutiny pursuant to notice under sub-section (2) of Section 143 is over15. The afore-stated conclusion is fortified and strengthened by clear stipulation to that effect in sub-section (1D) of Section 143. Irrespective of some change in the text of said provision which was sought to be introduced by Finance Act 2016 and not accepted by Finance Act, 2017, the legislative intent is clear from the expression, … the processing of a return shall not be necessary, where a notice has been issued to the assessee under sub-section (2) and by use of non-obstante clause. Though the period for which it would not be necessary to process the return was sought to be specified by Finance Act, 2016, mere absence of such period in the provision as it stands today, makes no difference. The above quoted portion from the provision and use of non-obstante clause indicate with sufficient clarity the intent of the Parliament that in cases where notice under sub-section (2) is issued and proceedings are initiated, the processing of a return under sub-section (1) shall not be necessary18. In the premises, we hold that in respect of Assessment Years ending on 31 st March 2017 or before, if a notice was issued in conformity with the requirements stated in sub-section (2) of Section 143 of the Act, it shall not be necessary to process the refund under sub- section (1) of Section 143 of the Act and that the requirement to process the return shall stand overriddenThe processing of return in terms of sub- section (1A) of Section 143 of the Act is to be done through centralized processing and as stated earlier, the scope of processing under sub- section (1) of Section 143 of the Act is purely summary in character. Once deeper scrutiny is undertaken and the matter is being considered from the perspective whether there is any avoidance of tax in any manner, issuance of notice under sub-section (2) itself is sufficient indication. Sub-section (1D) of Section 143 of the Act does not contemplate either issuance of any such intimation or further application of mind that the processing must be kept in abeyance. It would not, therefore, be proper to read into said provision the requirement to send a separate intimation. In our view, issuance of notice under sub-section (2) of Section 143 is enough to trigger the required consequence. Any other intimation is neither contemplated by the statute nor would it achieve any purpose20. Consequently, the submission that the intimation dated 23.07.2018 must be held to be invalid, inter alia on the ground that it was issued well after the period within which the return was required to be processed under sub-section (1) of Section 143 of the Act, must be rejected21. However, insofar as returns filed in respect of assessment year commencing on or after the 1 st April, 2017, a different regime has been contemplated by the Parliament. Section 241-A of the Act requires a separate recording of satisfaction on part of the Assessing Officer that having regard to the fact that a notice has been issued under sub-section (2) of Section 143, the grant of refund is likely to adversely affect the revenue; whereafter, with the previous approval of the Principal Commissioner or Commissioner and for reasons to be recorded in writing, the refund can be withheldSince the statute now envisages exercise of power of withholding of refund in a particular manner, it goes without saying that for assessment year commencing after 01.04.2017 the requirements of Section 241-A of the Act must be satisfiedIn terms of second proviso to sub-section (1) of Section 143 of the Act, the required intimation under said sub-section must be given before the expiry of one year from the end of the financial year in which the return is made. In respect of AY 2017-18, the return having been filed on 25.11.2017, period available in terms of said second proviso was upto 31.03.2019, without taking into account the fact that revised return was filed on 13.07.2018In the present case, the exercise of power on 14.03.2019 was not only after issuance of notice under sub-section (2) of Section 143 and after recording due satisfaction in terms of Section 241-A of the Act, but was also well within the period contemplated by sub-section (1) of Section 143 of the Act for causing due intimationWhether the satisfaction recorded in terms of said Section 241-A of the Act was otherwise correct or not and whether case for withholding of refund was made out or not, are not the issues that arise for our consideration. For the present purposes, whether exercise of power is facially in conformity with the statutory provisions is the issue and we are satisfied that there is nothing in the exercise of power that led to the passing of the order dated 14.03.2019 which could be said to have violated any statutory requirements23. Insofar as AY 2014-15 is concerned, final assessment order passed under Section 143(3) of the Act indicates that the appellant is entitled to refund of Rs.733 Crores; while for AY 2015-16 there is a demand of Rs.582 Crores. During the course of hearing, it was suggested on behalf of the respondents that demands in respect of earlier assessment years including the liability as a result of order dated 28.12.2019 as referred to in para 5.1 hereinabove being outstanding, the respondents would be entitled to invoke the requisite power under Section 245 of the Act to set off the amount of refund payable in respect of AY 2014-15 against tax remaining payable. | 0 | 15,187 | 1,551 | ### 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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suit has been instituted by the plaintiff in the Judge, Small Cause Court claiming the right and interest in the immovable property. 35. A statutory provision containing non obstante clause has to be given full effect. This Court in Union of India v. G.M. Kokil (1984) Supp. SCC 196 has laid down in para 11 as below: (SCC p. 203) 11. … It is well known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. Thus the non obstante clause in Section 70, namely, notwithstanding anything contained in that Act must mean notwithstanding anything to the contrary contained in that Act and as such it must refer to the exempting provisions which would be contrary to the general applicability of the Act. … 18. In the premises, we hold that in respect of Assessment Years ending on 31 st March 2017 or before, if a notice was issued in conformity with the requirements stated in sub-section (2) of Section 143 of the Act, it shall not be necessary to process the refund under sub- section (1) of Section 143 of the Act and that the requirement to process the return shall stand overridden. 19. We must now deal with the issue whether any intimation is required to be given to the assessee that because of initiation of proceedings pursuant to notice under sub-section (2) of Section 143 of the Act processing of return in terms of sub-section (1) of Section 143 of the Act, would stand deferred. The processing of return in terms of sub- section (1A) of Section 143 of the Act is to be done through centralized processing and as stated earlier, the scope of processing under sub- section (1) of Section 143 of the Act is purely summary in character. Once deeper scrutiny is undertaken and the matter is being considered from the perspective whether there is any avoidance of tax in any manner, issuance of notice under sub-section (2) itself is sufficient indication. Sub-section (1D) of Section 143 of the Act does not contemplate either issuance of any such intimation or further application of mind that the processing must be kept in abeyance. It would not, therefore, be proper to read into said provision the requirement to send a separate intimation. In our view, issuance of notice under sub-section (2) of Section 143 is enough to trigger the required consequence. Any other intimation is neither contemplated by the statute nor would it achieve any purpose. 20. Consequently, the submission that the intimation dated 23.07.2018 must be held to be invalid, inter alia on the ground that it was issued well after the period within which the return was required to be processed under sub-section (1) of Section 143 of the Act, must be rejected. 21. However, insofar as returns filed in respect of assessment year commencing on or after the 1 st April, 2017, a different regime has been contemplated by the Parliament. Section 241-A of the Act requires a separate recording of satisfaction on part of the Assessing Officer that having regard to the fact that a notice has been issued under sub-section (2) of Section 143, the grant of refund is likely to adversely affect the revenue; whereafter, with the previous approval of the Principal Commissioner or Commissioner and for reasons to be recorded in writing, the refund can be withheld. Since the statute now envisages exercise of power of withholding of refund in a particular manner, it goes without saying that for assessment year commencing after 01.04.2017 the requirements of Section 241-A of the Act must be satisfied. 22. We will, therefore, have to see whether insofar as AY 2017-18 is concerned, the order dated 14.03.2019 satisfies the required statutory parameters or not. In terms of second proviso to sub-section (1) of Section 143 of the Act, the required intimation under said sub-section must be given before the expiry of one year from the end of the financial year in which the return is made. In respect of AY 2017-18, the return having been filed on 25.11.2017, period available in terms of said second proviso was upto 31.03.2019, without taking into account the fact that revised return was filed on 13.07.2018. In the present case, the exercise of power on 14.03.2019 was not only after issuance of notice under sub-section (2) of Section 143 and after recording due satisfaction in terms of Section 241-A of the Act, but was also well within the period contemplated by sub-section (1) of Section 143 of the Act for causing due intimation. Whether the satisfaction recorded in terms of said Section 241-A of the Act was otherwise correct or not and whether case for withholding of refund was made out or not, are not the issues that arise for our consideration. For the present purposes, whether exercise of power is facially in conformity with the statutory provisions is the issue and we are satisfied that there is nothing in the exercise of power that led to the passing of the order dated 14.03.2019 which could be said to have violated any statutory requirements. 23. Insofar as AY 2014-15 is concerned, final assessment order passed under Section 143(3) of the Act indicates that the appellant is entitled to refund of Rs.733 Crores; while for AY 2015-16 there is a demand of Rs.582 Crores. During the course of hearing, it was suggested on behalf of the respondents that demands in respect of earlier assessment years including the liability as a result of order dated 28.12.2019 as referred to in para 5.1 hereinabove being outstanding, the respondents would be entitled to invoke the requisite power under Section 245 of the Act to set off the amount of refund payable in respect of AY 2014-15 against tax remaining payable.
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inescapable conclusion is that the processing of return under sub-section (1) of Section 143 must await the further exercise of power of scrutiny assessment under sub-sections (2) and (3) of Section 143. If the power under sub-section (2) of Section 143 of the Act is initiated in a manner known to law, there cannot be any insistence that the processing under sub-section (1) of Section 143 be completed and refund be made before the scrutiny pursuant to notice under sub-section (2) of Section 143 is over15. The afore-stated conclusion is fortified and strengthened by clear stipulation to that effect in sub-section (1D) of Section 143. Irrespective of some change in the text of said provision which was sought to be introduced by Finance Act 2016 and not accepted by Finance Act, 2017, the legislative intent is clear from the expression, … the processing of a return shall not be necessary, where a notice has been issued to the assessee under sub-section (2) and by use of non-obstante clause. Though the period for which it would not be necessary to process the return was sought to be specified by Finance Act, 2016, mere absence of such period in the provision as it stands today, makes no difference. The above quoted portion from the provision and use of non-obstante clause indicate with sufficient clarity the intent of the Parliament that in cases where notice under sub-section (2) is issued and proceedings are initiated, the processing of a return under sub-section (1) shall not be necessary18. In the premises, we hold that in respect of Assessment Years ending on 31 st March 2017 or before, if a notice was issued in conformity with the requirements stated in sub-section (2) of Section 143 of the Act, it shall not be necessary to process the refund under sub- section (1) of Section 143 of the Act and that the requirement to process the return shall stand overriddenThe processing of return in terms of sub- section (1A) of Section 143 of the Act is to be done through centralized processing and as stated earlier, the scope of processing under sub- section (1) of Section 143 of the Act is purely summary in character. Once deeper scrutiny is undertaken and the matter is being considered from the perspective whether there is any avoidance of tax in any manner, issuance of notice under sub-section (2) itself is sufficient indication. Sub-section (1D) of Section 143 of the Act does not contemplate either issuance of any such intimation or further application of mind that the processing must be kept in abeyance. It would not, therefore, be proper to read into said provision the requirement to send a separate intimation. In our view, issuance of notice under sub-section (2) of Section 143 is enough to trigger the required consequence. Any other intimation is neither contemplated by the statute nor would it achieve any purpose20. Consequently, the submission that the intimation dated 23.07.2018 must be held to be invalid, inter alia on the ground that it was issued well after the period within which the return was required to be processed under sub-section (1) of Section 143 of the Act, must be rejected21. However, insofar as returns filed in respect of assessment year commencing on or after the 1 st April, 2017, a different regime has been contemplated by the Parliament. Section 241-A of the Act requires a separate recording of satisfaction on part of the Assessing Officer that having regard to the fact that a notice has been issued under sub-section (2) of Section 143, the grant of refund is likely to adversely affect the revenue; whereafter, with the previous approval of the Principal Commissioner or Commissioner and for reasons to be recorded in writing, the refund can be withheldSince the statute now envisages exercise of power of withholding of refund in a particular manner, it goes without saying that for assessment year commencing after 01.04.2017 the requirements of Section 241-A of the Act must be satisfiedIn terms of second proviso to sub-section (1) of Section 143 of the Act, the required intimation under said sub-section must be given before the expiry of one year from the end of the financial year in which the return is made. In respect of AY 2017-18, the return having been filed on 25.11.2017, period available in terms of said second proviso was upto 31.03.2019, without taking into account the fact that revised return was filed on 13.07.2018In the present case, the exercise of power on 14.03.2019 was not only after issuance of notice under sub-section (2) of Section 143 and after recording due satisfaction in terms of Section 241-A of the Act, but was also well within the period contemplated by sub-section (1) of Section 143 of the Act for causing due intimationWhether the satisfaction recorded in terms of said Section 241-A of the Act was otherwise correct or not and whether case for withholding of refund was made out or not, are not the issues that arise for our consideration. For the present purposes, whether exercise of power is facially in conformity with the statutory provisions is the issue and we are satisfied that there is nothing in the exercise of power that led to the passing of the order dated 14.03.2019 which could be said to have violated any statutory requirements23. Insofar as AY 2014-15 is concerned, final assessment order passed under Section 143(3) of the Act indicates that the appellant is entitled to refund of Rs.733 Crores; while for AY 2015-16 there is a demand of Rs.582 Crores. During the course of hearing, it was suggested on behalf of the respondents that demands in respect of earlier assessment years including the liability as a result of order dated 28.12.2019 as referred to in para 5.1 hereinabove being outstanding, the respondents would be entitled to invoke the requisite power under Section 245 of the Act to set off the amount of refund payable in respect of AY 2014-15 against tax remaining payable.
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Collector Of Varanasi Vs. Gauri Shankar Misra & Ors | earlier.Dealing with the ratio of its decision in Rangoon Botatoung Co.s case, (1912) 39 Ind App 197 (PC) this is what Lord Shaw of Dunfermline observed (at p. 198 of the report) :"It was urged that the case of (1912) 39 Ind app 197 (PC) enounced a principle which formed a precedent for excluding all appeals from the decision of the district Court in such case as the present. Their Lordships do not think that is so. In the Rangoon Case a certain award had been made by the Collector under the Land Acquisition Act. This award was affirmed by the Court which under the Act meant a principal civil Court of original jurisdiction. Two judges sat as the Court and also as the High Court to which the appeal is given from the award of the Court. The proceeding were however, from beginning to end ostensibly and actually arbitration proceedings. In view of the nature of the question to be tried and the provisions of the particular statute, it was held that there was no right to carry an award made in an arbitration as to the value of land further than to the Courts specifically set up by the statute for the determination of that value."11. We have already come to the conclusion that the decision rendered by the High Court under Section 19 (1) (f) is a determination.Hence, it was within the competence of this Court to grant special leave under Article 136. But then it was urged on behalf of the respondents that in view of Rule 2, Order 13 of the Rules of this Court, as it stood at the relevant point of time, this Court could not have granted special leave as the appellant had not applied for necessary certificate under Art. 133, of the Constitution. In support of this contention reliance was placed on the decision of this Court in Management of the Hindusthan Commercial Bank Ltd., Kanpur v. Bhagwan Dass, (l965) 2 SCR 265 = (AIR 1965 SC 1142 ).Under Article 133, a certificate can be asked for filing an appeal against the judgment decree or final order of a High Court. As seen earlier this Court ruled in 1959 SCR 1177 = (AIR 1958 SC 947 ) that the decision rendered by the High Court under Sec. 19 (1) (f) is not a decree, judgment or final order. Hence, the provision of Article 133 are not attracted to the present case. Consequently, this case is taken outside the scope of the aforementioned Rule 2 of Order 13.As a measure of a abundant caution the appellant has filed CMP 2325 of 1967, praying that this Court may be pleased to excuse him from compliance with the requirements of O. 13, R. 2. In view of the decision of this Court in 1959 SCR 1177 = (AIR 1958 SC 947 ) no useful purpose would have been served by the appellants applying for a certificate under Article 133. Hence, even if we had come to the conclusion that the case falls within the scope of Order 13, Rule 2, we would not have had any hesitation in exempting the appellant from compliance with the requirement of that rule.12. This takes us to the merits of the case. The grievance of the appellant is that the High Court erred in law in awarding compensation on the basis of Exh. 42. The sale evidenced by that deed was effected in the year 1951, nearly five years after the acquisitions with which we are concerned in this case were effected. The sale in question cannot be considered as a contemporaneous transaction. The Arbitrator has found that after the close of the second world war, the price of landed property had gone up steeply. This finding does not appear to have been challenged before the High Court. Further, under the deed in question, the land sold was 26 acres in extent. The price fetched by such a tiny bit of land is of no assistance in determining the value of the lands acquired. On behalf of the respondents, we were asked to determine the compensation of the lands acquired on the basis of sale deed Exh.35 which relates to a sale that took place on 10-6-1947 which according to the respondents can be considered as a contemporaneous sale. We are unable to accept this contention. Exh. 35 relates to the sale of land measuring 28 acres.The vendee under that deed is one of the claimants. There is no evidence as to the nature of the land sold under that deed. Under these circumstances, very little value can be attached to that document. We are also of the opinion that none of the sale deeds produced in this case can afford any assistance in determining the compensation payable to the respondents. They do not evidence sales of lands similar to the acquired lauds, at about the time of the acquisition. The High Court did not address itself to the oral evidence adduced in this case for finding out the annual profits for the purpose of capitalisation. It rejected the evidence of the Naib-Tehsildar. For reasons not disclosed the village papers of 1354 fasli were not produced by the appellant. On the other hand, the village papers of 1355 fasli were produced. In the first place those records do not show the rent payable in the year in which the acquisitions took place. The acquisitions in question were made in fasli 1354.For the reasons mentioned in its judgment, the High Court felt unable to place reliance on the village papers of fasli 1355. We do not think that this Court should see the evidence afresh for determining the just compensation payable to the respondents. That question has to be gone into by the fact finding court. All that we need say is that the High Court was not right in determining the compensation payable to the respondents on the basis of Exh. 42. Hence its decision cannot be sustained.13. | 1[ds]There was no dispute that the arbitrator appointed under Section 19 (1) (b) was not a court. The fact that he was the District Judge, Varanasi, was merely a coincidence. There was no need to appoint the District Judge of Varanasi or any other District Judge as an arbitrator under that provision. Section 19 (1) (f) provides for an appeal against the order of thefact that the arbitrator appointed under Section 19 (1) (b) is either a designated person or a tribunal-as to whether he is a person designated or a tribunal we express no opinion-does not in any way bear on the question whether the High Court referred to under Section 19 (1) (f) is a court or not. Our statutes are full of instances where appeals or revisions to courts are provided as against the decisions of designated persons and tribunals.See for example, Advocates Act, Trade Markshierarchy of courts in this country is an organ of the State through which its judicial power is primarilydecisions relied on by this Court merely lay down the proposition that the decision given by the High Court in an appeal against an award is neither a decree, judgment or final order. None of the aforementioned decisions lay down the proposition that the High Court while exercising its appellate power did not function as a court. The observation in this Courts judgment that the provision for appeal to the High Court under Sec. 19 (1) (1) can only be construed as reference to it as an authority designated and not as a court, does not receive any support from those decisions. Nor do we find any sound basis for that conclusion. With respect to the learned Judges who decided that case, we are unable to agree with that conclusion.In our judgment while acting under Section 19 (1) (f), the High Court functions as a court and not as a designated person. Our conclusion in this regard receives support from the decision of the Judicial Committee in 43 Ind App 192 = (AIR 1916 PC 21) referred to earlier.Dealing with the ratio of its decision in Rangoon Botatoung Co.s case, (1912) 39 Ind App 197 (PC) this is what Lord Shaw of Dunfermline observed (at p. 198 of the report)This takes us to the merits of the case. The grievance of the appellant is that the High Court erred in law in awarding compensation on the basis of Exh. 42. The sale evidenced by that deed was effected in the year 1951, nearly five years after the acquisitions with which we are concerned in this case were effected. The sale in question cannot be considered as a contemporaneous transaction. The Arbitrator has found that after the close of the second world war, the price of landed property had gone up steeply. This finding does not appear to have been challenged before the High Court. Further, under the deed in question, the land sold was 26 acres in extent. The price fetched by such a tiny bit of land is of no assistance in determining the value of the lands acquired. On behalf of the respondents, we were asked to determine the compensation of the lands acquired on the basis of sale deed Exh.35 which relates to a sale that took place on 10-6-1947 which according to the respondents can be considered as a contemporaneous sale. We are unable to accept this contention. Exh. 35 relates to the sale of land measuring 28 acres.The vendee under that deed is one of the claimants. There is no evidence as to the nature of the land sold under that deed. Under these circumstances, very little value can be attached to that document. We are also of the opinion that none of the sale deeds produced in this case can afford any assistance in determining the compensation payable to the respondents. They do not evidence sales of lands similar to the acquired lauds, at about the time of the acquisition. The High Court did not address itself to the oral evidence adduced in this case for finding out the annual profits for the purpose of capitalisation. It rejected the evidence of the Naib-Tehsildar. For reasons not disclosed the village papers of 1354 fasli were not produced by the appellant. On the other hand, the village papers of 1355 fasli were produced. In the first place those records do not show the rent payable in the year in which the acquisitions took place. The acquisitions in question were made in fasli 1354.For the reasons mentioned in its judgment, the High Court felt unable to place reliance on the village papers of fasli 1355. We do not think that this Court should see the evidence afresh for determining the just compensation payable to the respondents. That question has to be gone into by the fact finding court. All that we need say is that the High Court was not right in determining the compensation payable to the respondents on the basis of Exh. 42. Hence its decision cannot be sustained. | 1 | 4,048 | 935 | ### 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:
earlier.Dealing with the ratio of its decision in Rangoon Botatoung Co.s case, (1912) 39 Ind App 197 (PC) this is what Lord Shaw of Dunfermline observed (at p. 198 of the report) :"It was urged that the case of (1912) 39 Ind app 197 (PC) enounced a principle which formed a precedent for excluding all appeals from the decision of the district Court in such case as the present. Their Lordships do not think that is so. In the Rangoon Case a certain award had been made by the Collector under the Land Acquisition Act. This award was affirmed by the Court which under the Act meant a principal civil Court of original jurisdiction. Two judges sat as the Court and also as the High Court to which the appeal is given from the award of the Court. The proceeding were however, from beginning to end ostensibly and actually arbitration proceedings. In view of the nature of the question to be tried and the provisions of the particular statute, it was held that there was no right to carry an award made in an arbitration as to the value of land further than to the Courts specifically set up by the statute for the determination of that value."11. We have already come to the conclusion that the decision rendered by the High Court under Section 19 (1) (f) is a determination.Hence, it was within the competence of this Court to grant special leave under Article 136. But then it was urged on behalf of the respondents that in view of Rule 2, Order 13 of the Rules of this Court, as it stood at the relevant point of time, this Court could not have granted special leave as the appellant had not applied for necessary certificate under Art. 133, of the Constitution. In support of this contention reliance was placed on the decision of this Court in Management of the Hindusthan Commercial Bank Ltd., Kanpur v. Bhagwan Dass, (l965) 2 SCR 265 = (AIR 1965 SC 1142 ).Under Article 133, a certificate can be asked for filing an appeal against the judgment decree or final order of a High Court. As seen earlier this Court ruled in 1959 SCR 1177 = (AIR 1958 SC 947 ) that the decision rendered by the High Court under Sec. 19 (1) (f) is not a decree, judgment or final order. Hence, the provision of Article 133 are not attracted to the present case. Consequently, this case is taken outside the scope of the aforementioned Rule 2 of Order 13.As a measure of a abundant caution the appellant has filed CMP 2325 of 1967, praying that this Court may be pleased to excuse him from compliance with the requirements of O. 13, R. 2. In view of the decision of this Court in 1959 SCR 1177 = (AIR 1958 SC 947 ) no useful purpose would have been served by the appellants applying for a certificate under Article 133. Hence, even if we had come to the conclusion that the case falls within the scope of Order 13, Rule 2, we would not have had any hesitation in exempting the appellant from compliance with the requirement of that rule.12. This takes us to the merits of the case. The grievance of the appellant is that the High Court erred in law in awarding compensation on the basis of Exh. 42. The sale evidenced by that deed was effected in the year 1951, nearly five years after the acquisitions with which we are concerned in this case were effected. The sale in question cannot be considered as a contemporaneous transaction. The Arbitrator has found that after the close of the second world war, the price of landed property had gone up steeply. This finding does not appear to have been challenged before the High Court. Further, under the deed in question, the land sold was 26 acres in extent. The price fetched by such a tiny bit of land is of no assistance in determining the value of the lands acquired. On behalf of the respondents, we were asked to determine the compensation of the lands acquired on the basis of sale deed Exh.35 which relates to a sale that took place on 10-6-1947 which according to the respondents can be considered as a contemporaneous sale. We are unable to accept this contention. Exh. 35 relates to the sale of land measuring 28 acres.The vendee under that deed is one of the claimants. There is no evidence as to the nature of the land sold under that deed. Under these circumstances, very little value can be attached to that document. We are also of the opinion that none of the sale deeds produced in this case can afford any assistance in determining the compensation payable to the respondents. They do not evidence sales of lands similar to the acquired lauds, at about the time of the acquisition. The High Court did not address itself to the oral evidence adduced in this case for finding out the annual profits for the purpose of capitalisation. It rejected the evidence of the Naib-Tehsildar. For reasons not disclosed the village papers of 1354 fasli were not produced by the appellant. On the other hand, the village papers of 1355 fasli were produced. In the first place those records do not show the rent payable in the year in which the acquisitions took place. The acquisitions in question were made in fasli 1354.For the reasons mentioned in its judgment, the High Court felt unable to place reliance on the village papers of fasli 1355. We do not think that this Court should see the evidence afresh for determining the just compensation payable to the respondents. That question has to be gone into by the fact finding court. All that we need say is that the High Court was not right in determining the compensation payable to the respondents on the basis of Exh. 42. Hence its decision cannot be sustained.13.
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There was no dispute that the arbitrator appointed under Section 19 (1) (b) was not a court. The fact that he was the District Judge, Varanasi, was merely a coincidence. There was no need to appoint the District Judge of Varanasi or any other District Judge as an arbitrator under that provision. Section 19 (1) (f) provides for an appeal against the order of thefact that the arbitrator appointed under Section 19 (1) (b) is either a designated person or a tribunal-as to whether he is a person designated or a tribunal we express no opinion-does not in any way bear on the question whether the High Court referred to under Section 19 (1) (f) is a court or not. Our statutes are full of instances where appeals or revisions to courts are provided as against the decisions of designated persons and tribunals.See for example, Advocates Act, Trade Markshierarchy of courts in this country is an organ of the State through which its judicial power is primarilydecisions relied on by this Court merely lay down the proposition that the decision given by the High Court in an appeal against an award is neither a decree, judgment or final order. None of the aforementioned decisions lay down the proposition that the High Court while exercising its appellate power did not function as a court. The observation in this Courts judgment that the provision for appeal to the High Court under Sec. 19 (1) (1) can only be construed as reference to it as an authority designated and not as a court, does not receive any support from those decisions. Nor do we find any sound basis for that conclusion. With respect to the learned Judges who decided that case, we are unable to agree with that conclusion.In our judgment while acting under Section 19 (1) (f), the High Court functions as a court and not as a designated person. Our conclusion in this regard receives support from the decision of the Judicial Committee in 43 Ind App 192 = (AIR 1916 PC 21) referred to earlier.Dealing with the ratio of its decision in Rangoon Botatoung Co.s case, (1912) 39 Ind App 197 (PC) this is what Lord Shaw of Dunfermline observed (at p. 198 of the report)This takes us to the merits of the case. The grievance of the appellant is that the High Court erred in law in awarding compensation on the basis of Exh. 42. The sale evidenced by that deed was effected in the year 1951, nearly five years after the acquisitions with which we are concerned in this case were effected. The sale in question cannot be considered as a contemporaneous transaction. The Arbitrator has found that after the close of the second world war, the price of landed property had gone up steeply. This finding does not appear to have been challenged before the High Court. Further, under the deed in question, the land sold was 26 acres in extent. The price fetched by such a tiny bit of land is of no assistance in determining the value of the lands acquired. On behalf of the respondents, we were asked to determine the compensation of the lands acquired on the basis of sale deed Exh.35 which relates to a sale that took place on 10-6-1947 which according to the respondents can be considered as a contemporaneous sale. We are unable to accept this contention. Exh. 35 relates to the sale of land measuring 28 acres.The vendee under that deed is one of the claimants. There is no evidence as to the nature of the land sold under that deed. Under these circumstances, very little value can be attached to that document. We are also of the opinion that none of the sale deeds produced in this case can afford any assistance in determining the compensation payable to the respondents. They do not evidence sales of lands similar to the acquired lauds, at about the time of the acquisition. The High Court did not address itself to the oral evidence adduced in this case for finding out the annual profits for the purpose of capitalisation. It rejected the evidence of the Naib-Tehsildar. For reasons not disclosed the village papers of 1354 fasli were not produced by the appellant. On the other hand, the village papers of 1355 fasli were produced. In the first place those records do not show the rent payable in the year in which the acquisitions took place. The acquisitions in question were made in fasli 1354.For the reasons mentioned in its judgment, the High Court felt unable to place reliance on the village papers of fasli 1355. We do not think that this Court should see the evidence afresh for determining the just compensation payable to the respondents. That question has to be gone into by the fact finding court. All that we need say is that the High Court was not right in determining the compensation payable to the respondents on the basis of Exh. 42. Hence its decision cannot be sustained.
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All India Blue Star Employees Federation & Another Vs. Blue Star Limited | No.39 consistently with the parent rule and the parent statute. Thus read, the requirement is only to state the number of persons "present and voted" at the meeting. The reason behind this is obvious for the Court has to be satisfied that, irrespective of the number of heads counted, the total shareholding in the prescribed percentage had lent its support to the terms of the scheme. In the present case, this has been complied with and we agree with the learned Single Judge that there is no contravention of the provisions of section 391(2).19.Two judgments of the Supreme Court were relied upon by both sides. The first is Hindustan Lever Employees Union v. Hindustan Lever Limited and others, reported in 1994 (4) Comp.L.J. 267 (S.C.). The second is Miheer H. Mafatlal v. Mafatlal Industries Ltd., reported in 87 Company Cases 792 . In our view, the learned Single Judge was right in holding that all contentions urged by the appellants were fully answered and concluded by the said two judgments of the Supreme Court. In fact, in the later judgment in Miheer Mafatlals case (supra) the Supreme Court reiterated what had been observed in the Hindustan Lever Limiteds case (supra) and pointed out that a compromise of this nature is a commercial decision and where an overwhelming majority of the shareholders and financial institutions holding large stakes in the company, who are presumably well versed on aspects of valuation of shares and their own commercial interests, approve of such a compromise or scheme after considering all imponderable and implicit factors which the shareholders have to keep in view for deciding whether to approve the scheme or not, it is not the function of the Company Court to nitpick the scheme and be astute to discover flaws in the scheme. The Supreme Court in Miheer Mafatlals case indicated the broad parameters of the jurisdiction of the Company Court in dealing with an application under section 394 of the Act in the following words :"In view of the aforesaid settled legal position, therefore, the scope and ambit of the jurisdiction of the Company Court has clearly got earmarked. The following broad contours of such jurisdiction have emerged:(1) The sanctioning Court has to see to it that all the requisite statutory procedure for supporting such a scheme has been complied with and that the requisite meetings as contemplated by section 391(1)(a) have been held.(2) That the scheme put up for sanction of the Court is backed up by the requisite majority vote as required by section 391(2).(3) That the concerned meetings of the creditors or members or any class of them had the relevant material to enable the voters to arrive at an informed decision for approving the scheme in question. That the majority decision of the concerned class of voters is just and fair to the class as a whole so as to legitimately bind even the dissenting members of that class.(4) That all necessary material indicated by section 393(1)(a) is placed before the voters at the concerned meetings as contemplated by section 391(1) .(5) That all the requisite material contemplated by the proviso to sub-section (2) of section 391 of the Act is placed before the Court by the concerned applicant seeking sanction for such a scheme and the Court gets satisfied about the same.(6) That the proposed scheme of compromise and arrangement is not found to be violative of any provision of law and is not contrary to public policy. For ascertaining the real purpose underlying the scheme with a view to be satisfied on this aspect, the Court, if necessary, can pierce the veil of apparent corporate purpose underlying the scheme and can judiciously x-ray the same.(7) That the company Court has also to satisfy itself that members or class of members or creditors or class of creditors, as the case may be, were acting bonafide and in good faith and were not coercing the minority in order to promote any interest adverse to that of the latter comprising the same class whom they purported to represent.(8) That the scheme as a whole is also found to be just, fair and reasonable from the point of view of prudent men of business taking a commercial decision beneficial to the class represented by them for whom the scheme is meant.(9) Once the aforesaid broad parameters about the requirements of a scheme for getting sanction of the Court are found to have been met, the court will have no further jurisdiction to sit in appeal over the commercial wisdom of the majority of the class of persons who with their open eyes have given their approval to the scheme even if in the view of the Court there could be a better scheme for the company and its members or creditors for whom the scheme is framed. The Court cannot refuse to sanction such a scheme on that ground as it would otherwise amount to the Court exercising appellate jurisdiction over the scheme rather than its supervisory jurisdiction.The aforesaid parameters of the scope and ambit of the jurisdiction of the Company Court which is called upon to sanction a scheme of compromise and arrangement are not exhaustive but only broadly illustrative of the contours of the Courts jurisdiction."20.Applying the principles laid down by the Supreme Court in the said two judgments, the learned Single Judge was satisfied that there was no merit in the objections raised to the scheme propounded before him. Despite the lengthy hearing given to the appellants in the matter, we too are not satisfied that there is any merit in any of the objections raised to the scheme. It was an overall package and 99.9% of the shareholders, and the financial institutions, voted in favour of the scheme. We do not find that the scheme in any way falls foul of the provisions of the Companies Act. There are no grounds of public policy on which we could be persuaded to hold that the scheme is bad. | 0[ds]On a careful perusal of these clauses, we are satisfied that none of the conditions of service applicable to any workmen or employees of B.S.L. would, in any way, be prejudiced, if the scheme is permitted to become effective. The employees are to be carried over as employees of BSL with the same conditions of service which they enjoyed before the scheme. Their services shall not be treated as broken or interrupted for all purposes including for terminable benefits. As far as the employees of BSIL are concerned, only such of the employees who are willing to be transferred to BSIL have been given the choice of being absorbed as employees of BSIL. Here again, option is given to the employees as to whether they would continue as employees of BSL or BSIL. In these circumstances, the scheme as such does not contain any provision which would affect the conditions of service of the workmen of BSL whom the appellant represents.11.LearnedCounsel for the appellant, however, contended that, as a consequence of the spin off of the ISD, the profitability of the parent company (i.e. BSL) would substantially reduce and so would the employment potential. Hence, there would be imminent danger of the workmen and employees of BSL losing theirissuance of notice under sectionof the Industrial Disputes Act is no part of the scheme itself. That is an independent act altogether. Even if it be assumed that approval of the scheme gave the management of BSL some ground for issuing the notice under sectionof the Industrial Disputes Act, that is a matter which is independently capable of being contested on its own merit in industrial adjudication. We are, therefore, unable to accept the contention that the scheme approved by the learned Single Judge in any way prejudices the interests of the workmen and employees ofagree with the learned Single Judges view that there is misapprehension as to the provisions of section 393(1)(a) on the part of the appellant. What section 391(1)(a) requires is that, if any director has any material interest in the terms of compromise arrangement and the interest of the director is of a different nature than the interest of the shareholders, and the compromise has different effect on the interest of the shareholders as compared to the interest of the director, then such material interest has to be disclosed. The appellants have failed to produce any material whatsoever before the learned Single Judge that any of the directors of BSI, had any such "material interest" in the terms of the scheme or that the terms in the compromise were likely to have any effect on such interest in a manner different from their effect on the interests of other shareholders. The learned Single Judge was therefore right in not countenancing this argument of the appellants.14.Itis also urged that there wasf facts, namely, that a director by name Ashok Advani held 36,04,590 shares of BSL, but that in the explanatory statement accompanying the notice of the shareholders and creditors, his shareholding in BSL has been shown only as 16,47,700. This, according to the learned Counsel for the appellants, is a deliberate untrue statement intended to mislead the shareholders and the Court. This would amount to contravention of the provisions of section 393(1)(a), in the submission of the learnedour view, this contention has no merit. It cannot be gainsaid that this was not a case where BSL was merging into another company, nor was this a situation where, as a result of merging, the shares of BSL were to become extinct. It was also not a situation where there was any compromise of merger with another company, whose shares were listed on the Stock Exchange and had certain market value. It was a unique situation in which ISD, which was part and parcel of BSL, was spun off into another company known as BSIL and the BSL shareholders were entitled to cash compensation for the consequent decrease in their capital by 25%. Instead of cash compensation being handed over to the shareholders, and the shareholders thereafter applying for shares of BSIL, the scheme propounded a package deal by which the cash payment due to the shareholders would be deemed to have been paid if one paid up share of Rs.10/of BSIL was issued against the cash compensation for reduction of 25% in the value of 4 shares ofour view, this was wholly irrelevant and unnecessary. Whatever the value of the shares of BSL in the market, the terms of the scheme proceed on the footing of valuation of the assets as at book value to determine the extent to which the capital of BSL stands reduced. It was also not a situation where shares of BSL were being swapped for the shares of BSIL. Instead of BSIL handing over cash payment to the shareholders of BSL for proportionate reduction in their share value, and the shareholders thereafter making payment to BSIL for subscribing to the shares of BSIL, the scheme makes a composite arrangement by which shares of BSIL are allotted to the shareholders of BSL in the ratio as aforesaid. We see nothing unconscionable in the bargain which has been approved by an overwhelming majority who held about 99.98% of the shareholding and by the Financial Institutions who held about 9% of the stake. The argument does not sound well from the mouth of the appellants who hardly hold 0.007% of the stock and whose dues to the tune of 54 lacs have been fully secured by the BankSupreme Court in Miheer Mafatlals case indicated the broad parameters of the jurisdiction of the Company Court in dealing with an application under section 394 of the Act in the following words :"In view of the aforesaid settled legal position, therefore, the scope and ambit of the jurisdiction of the Company Court has clearly got earmarked. The following broad contours of such jurisdiction have emerged:(1) The sanctioning Court has to see to it that all the requisite statutory procedure for supporting such a scheme has been complied with and that the requisite meetings as contemplated by section 391(1)(a) have been held.(2) That the scheme put up for sanction of the Court is backed up by the requisite majority vote as required by section 391(2).(3) That the concerned meetings of the creditors or members or any class of them had the relevant material to enable the voters to arrive at an informed decision for approving the scheme in question. That the majority decision of the concerned class of voters is just and fair to the class as a whole so as to legitimately bind even the dissenting members of that class.(4) That all necessary material indicated by section 393(1)(a) is placed before the voters at the concerned meetings as contemplated by section 391(1) .(5) That all the requisite material contemplated by the proviso to(2) of section 391 of the Act is placed before the Court by the concerned applicant seeking sanction for such a scheme and the Court gets satisfied about the same.(6) That the proposed scheme of compromise and arrangement is not found to be violative of any provision of law and is not contrary to public policy. For ascertaining the real purpose underlying the scheme with a view to be satisfied on this aspect, the Court, if necessary, can pierce the veil of apparent corporate purpose underlying the scheme and can judiciouslythe same.(7) That the company Court has also to satisfy itself that members or class of members or creditors or class of creditors, as the case may be, were acting bonafide and in good faith and were not coercing the minority in order to promote any interest adverse to that of the latter comprising the same class whom they purported to represent.(8) That the scheme as a whole is also found to be just, fair and reasonable from the point of view of prudent men of business taking a commercial decision beneficial to the class represented by them for whom the scheme is meant.(9) Once the aforesaid broad parameters about the requirements of a scheme for getting sanction of the Court are found to have been met, the court will have no further jurisdiction to sit in appeal over the commercial wisdom of the majority of the class of persons who with their open eyes have given their approval to the scheme even if in the view of the Court there could be a better scheme for the company and its members or creditors for whom the scheme is framed. The Court cannot refuse to sanction such a scheme on that ground as it would otherwise amount to the Court exercising appellate jurisdiction over the scheme rather than its supervisory jurisdiction.The aforesaid parameters of the scope and ambit of the jurisdiction of the Company Court which is called upon to sanction a scheme of compromise and arrangement are not exhaustive but only broadly illustrative of the contours of the Courts jurisdiction."20.Applying the principles laid down by the Supreme Court in the said two judgments, the learned Single Judge was satisfied that there was no merit in the objections raised to the scheme propounded before him. Despite the lengthy hearing given to the appellants in the matter, we too are not satisfied that there is any merit in any of the objections raised to the scheme. It was an overall package and 99.9% of the shareholders, and the financial institutions, voted in favour of the scheme. We do not find that the scheme in any way falls foul of the provisions of the Companies Act. There are no grounds of public policy on which we could be persuaded to hold that the scheme is bad. | 0 | 4,213 | 1,796 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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No.39 consistently with the parent rule and the parent statute. Thus read, the requirement is only to state the number of persons "present and voted" at the meeting. The reason behind this is obvious for the Court has to be satisfied that, irrespective of the number of heads counted, the total shareholding in the prescribed percentage had lent its support to the terms of the scheme. In the present case, this has been complied with and we agree with the learned Single Judge that there is no contravention of the provisions of section 391(2).19.Two judgments of the Supreme Court were relied upon by both sides. The first is Hindustan Lever Employees Union v. Hindustan Lever Limited and others, reported in 1994 (4) Comp.L.J. 267 (S.C.). The second is Miheer H. Mafatlal v. Mafatlal Industries Ltd., reported in 87 Company Cases 792 . In our view, the learned Single Judge was right in holding that all contentions urged by the appellants were fully answered and concluded by the said two judgments of the Supreme Court. In fact, in the later judgment in Miheer Mafatlals case (supra) the Supreme Court reiterated what had been observed in the Hindustan Lever Limiteds case (supra) and pointed out that a compromise of this nature is a commercial decision and where an overwhelming majority of the shareholders and financial institutions holding large stakes in the company, who are presumably well versed on aspects of valuation of shares and their own commercial interests, approve of such a compromise or scheme after considering all imponderable and implicit factors which the shareholders have to keep in view for deciding whether to approve the scheme or not, it is not the function of the Company Court to nitpick the scheme and be astute to discover flaws in the scheme. The Supreme Court in Miheer Mafatlals case indicated the broad parameters of the jurisdiction of the Company Court in dealing with an application under section 394 of the Act in the following words :"In view of the aforesaid settled legal position, therefore, the scope and ambit of the jurisdiction of the Company Court has clearly got earmarked. The following broad contours of such jurisdiction have emerged:(1) The sanctioning Court has to see to it that all the requisite statutory procedure for supporting such a scheme has been complied with and that the requisite meetings as contemplated by section 391(1)(a) have been held.(2) That the scheme put up for sanction of the Court is backed up by the requisite majority vote as required by section 391(2).(3) That the concerned meetings of the creditors or members or any class of them had the relevant material to enable the voters to arrive at an informed decision for approving the scheme in question. That the majority decision of the concerned class of voters is just and fair to the class as a whole so as to legitimately bind even the dissenting members of that class.(4) That all necessary material indicated by section 393(1)(a) is placed before the voters at the concerned meetings as contemplated by section 391(1) .(5) That all the requisite material contemplated by the proviso to sub-section (2) of section 391 of the Act is placed before the Court by the concerned applicant seeking sanction for such a scheme and the Court gets satisfied about the same.(6) That the proposed scheme of compromise and arrangement is not found to be violative of any provision of law and is not contrary to public policy. For ascertaining the real purpose underlying the scheme with a view to be satisfied on this aspect, the Court, if necessary, can pierce the veil of apparent corporate purpose underlying the scheme and can judiciously x-ray the same.(7) That the company Court has also to satisfy itself that members or class of members or creditors or class of creditors, as the case may be, were acting bonafide and in good faith and were not coercing the minority in order to promote any interest adverse to that of the latter comprising the same class whom they purported to represent.(8) That the scheme as a whole is also found to be just, fair and reasonable from the point of view of prudent men of business taking a commercial decision beneficial to the class represented by them for whom the scheme is meant.(9) Once the aforesaid broad parameters about the requirements of a scheme for getting sanction of the Court are found to have been met, the court will have no further jurisdiction to sit in appeal over the commercial wisdom of the majority of the class of persons who with their open eyes have given their approval to the scheme even if in the view of the Court there could be a better scheme for the company and its members or creditors for whom the scheme is framed. The Court cannot refuse to sanction such a scheme on that ground as it would otherwise amount to the Court exercising appellate jurisdiction over the scheme rather than its supervisory jurisdiction.The aforesaid parameters of the scope and ambit of the jurisdiction of the Company Court which is called upon to sanction a scheme of compromise and arrangement are not exhaustive but only broadly illustrative of the contours of the Courts jurisdiction."20.Applying the principles laid down by the Supreme Court in the said two judgments, the learned Single Judge was satisfied that there was no merit in the objections raised to the scheme propounded before him. Despite the lengthy hearing given to the appellants in the matter, we too are not satisfied that there is any merit in any of the objections raised to the scheme. It was an overall package and 99.9% of the shareholders, and the financial institutions, voted in favour of the scheme. We do not find that the scheme in any way falls foul of the provisions of the Companies Act. There are no grounds of public policy on which we could be persuaded to hold that the scheme is bad.
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and had certain market value. It was a unique situation in which ISD, which was part and parcel of BSL, was spun off into another company known as BSIL and the BSL shareholders were entitled to cash compensation for the consequent decrease in their capital by 25%. Instead of cash compensation being handed over to the shareholders, and the shareholders thereafter applying for shares of BSIL, the scheme propounded a package deal by which the cash payment due to the shareholders would be deemed to have been paid if one paid up share of Rs.10/of BSIL was issued against the cash compensation for reduction of 25% in the value of 4 shares ofour view, this was wholly irrelevant and unnecessary. Whatever the value of the shares of BSL in the market, the terms of the scheme proceed on the footing of valuation of the assets as at book value to determine the extent to which the capital of BSL stands reduced. It was also not a situation where shares of BSL were being swapped for the shares of BSIL. Instead of BSIL handing over cash payment to the shareholders of BSL for proportionate reduction in their share value, and the shareholders thereafter making payment to BSIL for subscribing to the shares of BSIL, the scheme makes a composite arrangement by which shares of BSIL are allotted to the shareholders of BSL in the ratio as aforesaid. We see nothing unconscionable in the bargain which has been approved by an overwhelming majority who held about 99.98% of the shareholding and by the Financial Institutions who held about 9% of the stake. The argument does not sound well from the mouth of the appellants who hardly hold 0.007% of the stock and whose dues to the tune of 54 lacs have been fully secured by the BankSupreme Court in Miheer Mafatlals case indicated the broad parameters of the jurisdiction of the Company Court in dealing with an application under section 394 of the Act in the following words :"In view of the aforesaid settled legal position, therefore, the scope and ambit of the jurisdiction of the Company Court has clearly got earmarked. The following broad contours of such jurisdiction have emerged:(1) The sanctioning Court has to see to it that all the requisite statutory procedure for supporting such a scheme has been complied with and that the requisite meetings as contemplated by section 391(1)(a) have been held.(2) That the scheme put up for sanction of the Court is backed up by the requisite majority vote as required by section 391(2).(3) That the concerned meetings of the creditors or members or any class of them had the relevant material to enable the voters to arrive at an informed decision for approving the scheme in question. That the majority decision of the concerned class of voters is just and fair to the class as a whole so as to legitimately bind even the dissenting members of that class.(4) That all necessary material indicated by section 393(1)(a) is placed before the voters at the concerned meetings as contemplated by section 391(1) .(5) That all the requisite material contemplated by the proviso to(2) of section 391 of the Act is placed before the Court by the concerned applicant seeking sanction for such a scheme and the Court gets satisfied about the same.(6) That the proposed scheme of compromise and arrangement is not found to be violative of any provision of law and is not contrary to public policy. For ascertaining the real purpose underlying the scheme with a view to be satisfied on this aspect, the Court, if necessary, can pierce the veil of apparent corporate purpose underlying the scheme and can judiciouslythe same.(7) That the company Court has also to satisfy itself that members or class of members or creditors or class of creditors, as the case may be, were acting bonafide and in good faith and were not coercing the minority in order to promote any interest adverse to that of the latter comprising the same class whom they purported to represent.(8) That the scheme as a whole is also found to be just, fair and reasonable from the point of view of prudent men of business taking a commercial decision beneficial to the class represented by them for whom the scheme is meant.(9) Once the aforesaid broad parameters about the requirements of a scheme for getting sanction of the Court are found to have been met, the court will have no further jurisdiction to sit in appeal over the commercial wisdom of the majority of the class of persons who with their open eyes have given their approval to the scheme even if in the view of the Court there could be a better scheme for the company and its members or creditors for whom the scheme is framed. The Court cannot refuse to sanction such a scheme on that ground as it would otherwise amount to the Court exercising appellate jurisdiction over the scheme rather than its supervisory jurisdiction.The aforesaid parameters of the scope and ambit of the jurisdiction of the Company Court which is called upon to sanction a scheme of compromise and arrangement are not exhaustive but only broadly illustrative of the contours of the Courts jurisdiction."20.Applying the principles laid down by the Supreme Court in the said two judgments, the learned Single Judge was satisfied that there was no merit in the objections raised to the scheme propounded before him. Despite the lengthy hearing given to the appellants in the matter, we too are not satisfied that there is any merit in any of the objections raised to the scheme. It was an overall package and 99.9% of the shareholders, and the financial institutions, voted in favour of the scheme. We do not find that the scheme in any way falls foul of the provisions of the Companies Act. There are no grounds of public policy on which we could be persuaded to hold that the scheme is bad.
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M/S. Chidambaram Mulrak & Co. Pvt. Ltd Vs. Commissioner Of Income Tax, Bombay City I | and gains of a business and does not create a fresh source therefor, and as the amount in question in this case was received in the accounting year relevant to the assessment year 1955-56, it was taxable in the assessment year 1955-56. The Tribunal, however, agreed with the Appellate Assistant Commissioner that the assessee was entitled to a deduction of Rs. 6 lakhs which the assessee had paid for acquiring the managing agency, and allowed the appeal partly holding that the assessee was liable to pay tax on the sum of Rs. 3, 95, 000. At the instance of the parties the Tribunal referred the following two questions to the High Court under section 66(1)" (i) Whether the sum of Rs. 10 lakhs is income assessable in the year 1955-56 by virtue of section 10(5A) ?(ii) If the answer is in the affirmative, whether the initial cost of acquisition of the managing agency of Rs. 6 lakhs and Rs. 5, 000 paid as brokerage on sale are deductible?"3. The first question was referred at the instance of the assessee and the second at the instance of the department. The High Court overruled the contention of the assessee that the amount in question was income from a new source for which the previous year was 1953-54, and answered the first question in the affirmative and in favour of the revenue. As regards the second question, the High Court answered it in favour of the assessee and upheld the order of the Tribunal. In the present appeal brought on a certificate under section 66A(2), the assessee challenges the correctness of the answer given by the High Court to the first question." Previous year" is defined in section 2(11) of the Indian Income-tax Act, 1922, and the relevant part of the definition is as follows:"(11) Previous year means in respect of any separate source of income, profits and gains-(a) the twelve months ending on the 31st day of March next preceding the year for which the assessment is to be made, or, if the accounts of the assessee have been made up to a date within the said twelve months in respect of a year ending on any date other than the said 31st day of March, then at the option of the assessee, the year ending on the date to which his accounts have been so made up: "4. As stated already, sub-section (5A) of section 10 came into force on April 1, 1955 ; therefore, the amount in question, if received by the assessee during the previous year for the assessment year 1955-56 would be taxable under that sub-section. By a legal fiction introduced by sub-section (5A) any amount received by a managing agent as compensation for the termination of his managing agency agreement which would otherwise have been a capital receipt is to be deemed as profits and gains of a business carried on by the managing agent. The appellant contends that sub-section (5A) indicates that this deemed income is to be treated as receipt from a new source and, that being so, the relevant previous year for this income would not necessarily be the year ending on June 30, 1954, which was the previous year for the managing agency business, and the assessee should have been given an opportunity to choose the previous year in respect of the receipt in question ; if the financial year 1953-54 is taken as the previous year for this income from a new source, the argument proceeds, then the amount would not be taxable in the assessment year 1955-56. It is further argued that the amount received as compensation could not be the profits and gains of the managing agency business because the business itself was being terminated. The words of the sub-section, according to the learned counsel for the appellant, indicate that the receipt is to be treated as income from a new and independent source. Sub-section (5A) states, inter alia, that any compensation or other payment received by a managing agent in connection with the termination of his managing agency agreement shall be deemed to be profits and gains of "a business" carried on by the managing agent. The use of the indefinite article before the word "business", it is submitted, makes it plain that the income is not relatable to the managing agency business but to a new and separate sourceWe are unable to accept the contention. The fiction introduced by sub-section (5A) regards the capital receipt as income and does not extend to treating the termination of managing agency itself as a business. The amount received by the appellant was a payment for the termination of the managing agency business and, as such, the receipt is obviously related to that business. It is of course true that the amount was not earned in carrying on the business of managing agency, but it is clear that the source of the receipt was the managing agency business itself. It cannot, therefore, be said that the receipt was income from a new and independent source. In our opinion the High Court was right in holding that in enacting sub-section (5A) the legislature was concerned only with providing a head under which the receipt which has been deemed to be income could be brought to tax and was not concerned with creating a new source for that deemed income. Two decisions cited on behalf of the respondent, one of the Bombay High Court, Commissioner of Income-tax v. Sir Chunilal V. Mehta & Sons Private Ltd., and the other of the Madras High Court, R. V. Lakshmiah Naidu and Co. v. Commissioner of Income-tax, have both held that the compensation paid for the termination of a managing agency business is a payment in relation to the said business and, therefore, the previous year relevant to that receipt would be the same as the previous year for the managing agency business itself. In our view these two decisions state the law on the point correctly.5. | 0[ds]The fiction introduced by sub-section (5A) regards the capital receipt as income and does not extend to treating the termination of managing agency itself as a business. The amount received by the appellant was a payment for the termination of the managing agency business and, as such, the receipt is obviously related to that business. It is of course true that the amount was not earned in carrying on the business of managing agency, but it is clear that the source of the receipt was the managing agency business itself. It cannot, therefore, be said that the receipt was income from a new and independent source. In our opinion the High Court was right in holding that in enacting sub-section (5A) the legislature was concerned only with providing a head under which the receipt which has been deemed to be income could be brought to tax and was not concerned with creating a new source for that deemed income. Two decisions cited on behalf of the respondent, one of the Bombay High Court, Commissioner of Income-tax v. Sir Chunilal V. Mehta & Sons Private Ltd., and the other of the Madras High Court, R. V. Lakshmiah Naidu and Co. v. Commissioner of Income-tax, have both held that the compensation paid for the termination of a managing agency business is a payment in relation to the said business and, therefore, the previous year relevant to that receipt would be the same as the previous year for the managing agency business itself. In our view these two decisions state the law on the point correctly. | 0 | 2,066 | 291 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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and gains of a business and does not create a fresh source therefor, and as the amount in question in this case was received in the accounting year relevant to the assessment year 1955-56, it was taxable in the assessment year 1955-56. The Tribunal, however, agreed with the Appellate Assistant Commissioner that the assessee was entitled to a deduction of Rs. 6 lakhs which the assessee had paid for acquiring the managing agency, and allowed the appeal partly holding that the assessee was liable to pay tax on the sum of Rs. 3, 95, 000. At the instance of the parties the Tribunal referred the following two questions to the High Court under section 66(1)" (i) Whether the sum of Rs. 10 lakhs is income assessable in the year 1955-56 by virtue of section 10(5A) ?(ii) If the answer is in the affirmative, whether the initial cost of acquisition of the managing agency of Rs. 6 lakhs and Rs. 5, 000 paid as brokerage on sale are deductible?"3. The first question was referred at the instance of the assessee and the second at the instance of the department. The High Court overruled the contention of the assessee that the amount in question was income from a new source for which the previous year was 1953-54, and answered the first question in the affirmative and in favour of the revenue. As regards the second question, the High Court answered it in favour of the assessee and upheld the order of the Tribunal. In the present appeal brought on a certificate under section 66A(2), the assessee challenges the correctness of the answer given by the High Court to the first question." Previous year" is defined in section 2(11) of the Indian Income-tax Act, 1922, and the relevant part of the definition is as follows:"(11) Previous year means in respect of any separate source of income, profits and gains-(a) the twelve months ending on the 31st day of March next preceding the year for which the assessment is to be made, or, if the accounts of the assessee have been made up to a date within the said twelve months in respect of a year ending on any date other than the said 31st day of March, then at the option of the assessee, the year ending on the date to which his accounts have been so made up: "4. As stated already, sub-section (5A) of section 10 came into force on April 1, 1955 ; therefore, the amount in question, if received by the assessee during the previous year for the assessment year 1955-56 would be taxable under that sub-section. By a legal fiction introduced by sub-section (5A) any amount received by a managing agent as compensation for the termination of his managing agency agreement which would otherwise have been a capital receipt is to be deemed as profits and gains of a business carried on by the managing agent. The appellant contends that sub-section (5A) indicates that this deemed income is to be treated as receipt from a new source and, that being so, the relevant previous year for this income would not necessarily be the year ending on June 30, 1954, which was the previous year for the managing agency business, and the assessee should have been given an opportunity to choose the previous year in respect of the receipt in question ; if the financial year 1953-54 is taken as the previous year for this income from a new source, the argument proceeds, then the amount would not be taxable in the assessment year 1955-56. It is further argued that the amount received as compensation could not be the profits and gains of the managing agency business because the business itself was being terminated. The words of the sub-section, according to the learned counsel for the appellant, indicate that the receipt is to be treated as income from a new and independent source. Sub-section (5A) states, inter alia, that any compensation or other payment received by a managing agent in connection with the termination of his managing agency agreement shall be deemed to be profits and gains of "a business" carried on by the managing agent. The use of the indefinite article before the word "business", it is submitted, makes it plain that the income is not relatable to the managing agency business but to a new and separate sourceWe are unable to accept the contention. The fiction introduced by sub-section (5A) regards the capital receipt as income and does not extend to treating the termination of managing agency itself as a business. The amount received by the appellant was a payment for the termination of the managing agency business and, as such, the receipt is obviously related to that business. It is of course true that the amount was not earned in carrying on the business of managing agency, but it is clear that the source of the receipt was the managing agency business itself. It cannot, therefore, be said that the receipt was income from a new and independent source. In our opinion the High Court was right in holding that in enacting sub-section (5A) the legislature was concerned only with providing a head under which the receipt which has been deemed to be income could be brought to tax and was not concerned with creating a new source for that deemed income. Two decisions cited on behalf of the respondent, one of the Bombay High Court, Commissioner of Income-tax v. Sir Chunilal V. Mehta & Sons Private Ltd., and the other of the Madras High Court, R. V. Lakshmiah Naidu and Co. v. Commissioner of Income-tax, have both held that the compensation paid for the termination of a managing agency business is a payment in relation to the said business and, therefore, the previous year relevant to that receipt would be the same as the previous year for the managing agency business itself. In our view these two decisions state the law on the point correctly.5.
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### Explanation:
The fiction introduced by sub-section (5A) regards the capital receipt as income and does not extend to treating the termination of managing agency itself as a business. The amount received by the appellant was a payment for the termination of the managing agency business and, as such, the receipt is obviously related to that business. It is of course true that the amount was not earned in carrying on the business of managing agency, but it is clear that the source of the receipt was the managing agency business itself. It cannot, therefore, be said that the receipt was income from a new and independent source. In our opinion the High Court was right in holding that in enacting sub-section (5A) the legislature was concerned only with providing a head under which the receipt which has been deemed to be income could be brought to tax and was not concerned with creating a new source for that deemed income. Two decisions cited on behalf of the respondent, one of the Bombay High Court, Commissioner of Income-tax v. Sir Chunilal V. Mehta & Sons Private Ltd., and the other of the Madras High Court, R. V. Lakshmiah Naidu and Co. v. Commissioner of Income-tax, have both held that the compensation paid for the termination of a managing agency business is a payment in relation to the said business and, therefore, the previous year relevant to that receipt would be the same as the previous year for the managing agency business itself. In our view these two decisions state the law on the point correctly.
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Sahebrao Mohan Berad Vs. State of Maharashtra | death, the appeal was referred for decision to third Honble Judge. Accordingly, the appeal was placed for consideration before P.B. Gaikwad, J. He agreed with the conclusion of the Marlapalle, J. and came to the conclusion that the circumstances proved beyond all reasonable doubt lead to one and on the only conclusion towards the guilt of the appellant and further the deceased died a homicidal death. For coming to the aforesaid conclusion Gaikwad, J. held that a false report was given by PW.1, Kashinath, the uncle of the appellant at the instance of the father of the appellant alleging accidental death of the deceased. Another circumstance relied on was that during the night between 25th of June, 1984 and 26th of June, 1984 the deceased Laxmibai was in the company of the appellant and residing with him. Recovery of rolling pin by which the deceased was strangulated at the instance of the appellant was another circumstance relied on to convict the appellant. Failure of the appellant, who is none other than her husband and living together even in the night of occurrence to explain the circumstances under which Laxmibai met with the homicidal death was also taken into consideration to establish the guilt of the appellant. As regards the cause of death Gaikwad, J. held that Laxmibai died due to strangulation and it was a homicidal death. In this connection he observed as follows: "The Doctor, after considering the findings as regards external and internal injuries given opinion as regards cause of death as "death due to strangulation". If the evidence of PW.7 is read together with the evidence of post mortem report and the symptom; noticed by her on external and internal examination, I find that the said evidence is satisfactory and convincing so far as opinion about cause of death is concerned." 6. Accordingly, the order of the trial court acquitting the appellant of both the charges was set aside and he was held guilty for offence punishable under Section 302 and 201 of the Indian Penal Code and sentenced to suffer imprisonment for life and rigorous imprisonment for three years respectively.7. That is how the appellant is before us in the present appeal.8. Main plank of the submission of Mr. Arun R. Pednekar, learned Counsel appearing on behalf of the appellant is that the deceased Laxmibai met with an accidental death due to drowning and, therefore, the conviction of the appellant under Section 302 and 201 of the Indian Penal Code is bad in law. He points out that PW.7, Dr.(Mrs.) Sunanda Pande, during the postmortem examination, has not found any external injury on the person of the deceased. Presence of frothy discharge in the larynx and trachea and whitish discharge from right nostril in the postmortem examination of the deceased clearly go to show that the deceased met with an accidental death due to drowning. 9. Ms. Asha Gopalan Nair, learned Counsel representing the respondent-State, however, submits that PW.7, Dr.(Mrs.) Sunanda who conducted the postmortem examination in unequivocal terms stated that the deceased died due to strangulation and there is no reason to disbelieve her evidence. She points out that the evidence of PW.7, Dr. Sunanda and the postmortem report and the fact found by her on external and internal examination of the dead body clearly go to suggest that the deceased met with a homicidal death. 10. We have bestowed our consideration to the rival submission and we do not find any substance in the submission of Mr. Pednekar. PW.7, Dr. Sunanda had performed postmortem over the dead body of Laxmibai on 26th June, 1984 between 2 P.M. and 3 P.M. Her assertion that she had experience of conducting the postmortem examination has not been questioned by the appellant. She had found heamotoma on the neck and in her opinion the death was possible by pressing the rolling pin on the neck. The rolling pin recovered at the instance of the appellant was shown to her and she gave opinion that the death can be caused by pressing the same on neck.11. This Doctor though had found frothy discharge in the larynx and trachea and whitish discharge from the right nostril, still on consideration of the finding as regards the external and internal injuries came to the definite opinion that the death was due to strangulation. She had specifically denied the suggestion that the deceased met with an accidental death due to drowning. In the face of the same we find it difficult to hold that the deceased met with an accidental death. True it is that few signs of drowning were found on the dead body in the post mortem examination and the doctor though cognizant of the same came to the definite conclusion that the deceased died of strangulation. In our opinion, the doctor who examined the deceased and conducted the post-mortem is the only competent person to opine the nature of injuries and the cause of death. It is only in a case, where the opinion is inherently defective, the Court will discard its evidence. Reference in this connection can be made to a decision of this Court in the case of Mafabhai Nagarbhai Raval vs. State of Gujarat (1992) 4 SCC 69 in which it has been held as follows : "3.......... It is needles to say that the doctor who has examined the deceased and conducted the post- mortem is the only competent witness to speak about the nature of injuries and the cause of death. Unless there is something inherently defective the court cannot substitute its opinion for that of the doctor." 12. We have not found the death of the deceased to be accidental. Further, the circumstances referred to above clearly go to point out towards the guilt of the appellant.13. We are of the opinion that the High Court is right in coming to the conclusion that the circumstances proved clearly points out towards the guilt of the appellant and further deceased met with a homicidal death. | 0[ds]10. We have bestowed our consideration to the rival submission and we do not find any substance in the submission of Mr. Pednekar. PW.7, Dr. Sunanda had performed postmortem over the dead body of Laxmibai on 26th June, 1984 between 2 P.M. and 3 P.M. Her assertion that she had experience of conducting the postmortem examination has not been questioned by the appellant. She had found heamotoma on the neck and in her opinion the death was possible by pressing the rolling pin on the neck. The rolling pin recovered at the instance of the appellant was shown to her and she gave opinion that the death can be caused by pressing the same on neck.11. This Doctor though had found frothy discharge in the larynx and trachea and whitish discharge from the right nostril, still on consideration of the finding as regards the external and internal injuries came to the definite opinion that the death was due to strangulation. She had specifically denied the suggestion that the deceased met with an accidental death due to drowning. In the face of the same we find it difficult to hold that the deceased met with an accidental death. True it is that few signs of drowning were found on the dead body in the post mortem examination and the doctor though cognizant of the same came to the definite conclusion that the deceased died of strangulation. In our opinion, the doctor who examined the deceased and conducted theis the only competent person to opine the nature of injuries and the cause of death. It is only in a case, where the opinion is inherently defective, the Court will discard its evidence. Reference in this connection can be made to a decision of this Court in the case of Mafabhai Nagarbhai Raval vs. State of Gujarat (1992) 4 SCC 69 in which it has been held as followsIt is needles to say that the doctor who has examined the deceased and conducted the postmortem is the only competent witness to speak about the nature of injuries and the cause of death. Unless there is something inherently defective the court cannot substitute its opinion for that of the doctor.We have not found the death of the deceased to be accidental. Further, the circumstances referred to above clearly go to point out towards the guilt of the appellant.13. We are of the opinion that the High Court is right in coming to the conclusion that the circumstances proved clearly points out towards the guilt of the appellant and further deceased met with a homicidal death. | 0 | 1,873 | 461 | ### Instruction:
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death, the appeal was referred for decision to third Honble Judge. Accordingly, the appeal was placed for consideration before P.B. Gaikwad, J. He agreed with the conclusion of the Marlapalle, J. and came to the conclusion that the circumstances proved beyond all reasonable doubt lead to one and on the only conclusion towards the guilt of the appellant and further the deceased died a homicidal death. For coming to the aforesaid conclusion Gaikwad, J. held that a false report was given by PW.1, Kashinath, the uncle of the appellant at the instance of the father of the appellant alleging accidental death of the deceased. Another circumstance relied on was that during the night between 25th of June, 1984 and 26th of June, 1984 the deceased Laxmibai was in the company of the appellant and residing with him. Recovery of rolling pin by which the deceased was strangulated at the instance of the appellant was another circumstance relied on to convict the appellant. Failure of the appellant, who is none other than her husband and living together even in the night of occurrence to explain the circumstances under which Laxmibai met with the homicidal death was also taken into consideration to establish the guilt of the appellant. As regards the cause of death Gaikwad, J. held that Laxmibai died due to strangulation and it was a homicidal death. In this connection he observed as follows: "The Doctor, after considering the findings as regards external and internal injuries given opinion as regards cause of death as "death due to strangulation". If the evidence of PW.7 is read together with the evidence of post mortem report and the symptom; noticed by her on external and internal examination, I find that the said evidence is satisfactory and convincing so far as opinion about cause of death is concerned." 6. Accordingly, the order of the trial court acquitting the appellant of both the charges was set aside and he was held guilty for offence punishable under Section 302 and 201 of the Indian Penal Code and sentenced to suffer imprisonment for life and rigorous imprisonment for three years respectively.7. That is how the appellant is before us in the present appeal.8. Main plank of the submission of Mr. Arun R. Pednekar, learned Counsel appearing on behalf of the appellant is that the deceased Laxmibai met with an accidental death due to drowning and, therefore, the conviction of the appellant under Section 302 and 201 of the Indian Penal Code is bad in law. He points out that PW.7, Dr.(Mrs.) Sunanda Pande, during the postmortem examination, has not found any external injury on the person of the deceased. Presence of frothy discharge in the larynx and trachea and whitish discharge from right nostril in the postmortem examination of the deceased clearly go to show that the deceased met with an accidental death due to drowning. 9. Ms. Asha Gopalan Nair, learned Counsel representing the respondent-State, however, submits that PW.7, Dr.(Mrs.) Sunanda who conducted the postmortem examination in unequivocal terms stated that the deceased died due to strangulation and there is no reason to disbelieve her evidence. She points out that the evidence of PW.7, Dr. Sunanda and the postmortem report and the fact found by her on external and internal examination of the dead body clearly go to suggest that the deceased met with a homicidal death. 10. We have bestowed our consideration to the rival submission and we do not find any substance in the submission of Mr. Pednekar. PW.7, Dr. Sunanda had performed postmortem over the dead body of Laxmibai on 26th June, 1984 between 2 P.M. and 3 P.M. Her assertion that she had experience of conducting the postmortem examination has not been questioned by the appellant. She had found heamotoma on the neck and in her opinion the death was possible by pressing the rolling pin on the neck. The rolling pin recovered at the instance of the appellant was shown to her and she gave opinion that the death can be caused by pressing the same on neck.11. This Doctor though had found frothy discharge in the larynx and trachea and whitish discharge from the right nostril, still on consideration of the finding as regards the external and internal injuries came to the definite opinion that the death was due to strangulation. She had specifically denied the suggestion that the deceased met with an accidental death due to drowning. In the face of the same we find it difficult to hold that the deceased met with an accidental death. True it is that few signs of drowning were found on the dead body in the post mortem examination and the doctor though cognizant of the same came to the definite conclusion that the deceased died of strangulation. In our opinion, the doctor who examined the deceased and conducted the post-mortem is the only competent person to opine the nature of injuries and the cause of death. It is only in a case, where the opinion is inherently defective, the Court will discard its evidence. Reference in this connection can be made to a decision of this Court in the case of Mafabhai Nagarbhai Raval vs. State of Gujarat (1992) 4 SCC 69 in which it has been held as follows : "3.......... It is needles to say that the doctor who has examined the deceased and conducted the post- mortem is the only competent witness to speak about the nature of injuries and the cause of death. Unless there is something inherently defective the court cannot substitute its opinion for that of the doctor." 12. We have not found the death of the deceased to be accidental. Further, the circumstances referred to above clearly go to point out towards the guilt of the appellant.13. We are of the opinion that the High Court is right in coming to the conclusion that the circumstances proved clearly points out towards the guilt of the appellant and further deceased met with a homicidal death.
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### Explanation:
10. We have bestowed our consideration to the rival submission and we do not find any substance in the submission of Mr. Pednekar. PW.7, Dr. Sunanda had performed postmortem over the dead body of Laxmibai on 26th June, 1984 between 2 P.M. and 3 P.M. Her assertion that she had experience of conducting the postmortem examination has not been questioned by the appellant. She had found heamotoma on the neck and in her opinion the death was possible by pressing the rolling pin on the neck. The rolling pin recovered at the instance of the appellant was shown to her and she gave opinion that the death can be caused by pressing the same on neck.11. This Doctor though had found frothy discharge in the larynx and trachea and whitish discharge from the right nostril, still on consideration of the finding as regards the external and internal injuries came to the definite opinion that the death was due to strangulation. She had specifically denied the suggestion that the deceased met with an accidental death due to drowning. In the face of the same we find it difficult to hold that the deceased met with an accidental death. True it is that few signs of drowning were found on the dead body in the post mortem examination and the doctor though cognizant of the same came to the definite conclusion that the deceased died of strangulation. In our opinion, the doctor who examined the deceased and conducted theis the only competent person to opine the nature of injuries and the cause of death. It is only in a case, where the opinion is inherently defective, the Court will discard its evidence. Reference in this connection can be made to a decision of this Court in the case of Mafabhai Nagarbhai Raval vs. State of Gujarat (1992) 4 SCC 69 in which it has been held as followsIt is needles to say that the doctor who has examined the deceased and conducted the postmortem is the only competent witness to speak about the nature of injuries and the cause of death. Unless there is something inherently defective the court cannot substitute its opinion for that of the doctor.We have not found the death of the deceased to be accidental. Further, the circumstances referred to above clearly go to point out towards the guilt of the appellant.13. We are of the opinion that the High Court is right in coming to the conclusion that the circumstances proved clearly points out towards the guilt of the appellant and further deceased met with a homicidal death.
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KANDLA PORT WORKERS UNION Vs. FCI | 15 employees. He submitted that learned Single Judge is right in allowing the Writ Petition by holding that the work charge employees cannot be discriminated in the grant of the benefit extended to only 15 regular employees. Mr. Goel supported the conclusion of the learned Single Judge that the Tribunal was right in holding that the work charge employees have to be treated to be in service prior to 01.01.1973. Mr. Goel criticized the judgment of the Division Bench by arguing that reliance could not have been placed on the operative portion of the award of the Industrial Tribunal which was restricted only to 15 employees. 9. Mr. N.K. Kaul, learned Senior Counsel appearing for Respondent No.1 submitted that the work charge employees were appointed in the FCI w.e.f. 01.01.1973 and were governed by the FCI Regulations. No grievance was raised by them till the year 1996 when the benefit of the award dated 05.08.1991 of the Industrial Tribunal was granted to the regular employees. He submitted that no parity can be claimed by the work charge employees and they should not have complained as they could have been retrenched in 1973 itself. They agreed to be bound by the FCI Regulations and all of them have retired from the FCI after working continuously from 01.01.1973. The Office Order dated 18.09.1973 clearly mentions that the employees would be governed by the FCI CPF Regulations. He commended for our consideration the approval of the judgment of the Division Bench. 10. The nub of the dispute revolves around the entitlement of the work charge employees to the relief that was granted to the 15 regular employees. The Office Order of the FCI dated 18.09.1973 was issued under Clause XIX of the Agreement dated 08.04.1965 entered into between the President of India and the Trustees of the Port of Kandla. A clear distinction was made in the Office Order between regular employees and work charge employees. The regular employees were taken over as confirmed in their appropriate posts and they would be subject to the FCI (Staff) Regulations, 1971 regarding service conditions. According to the said agreement, the work charge employees were also taken over as regular employees from 01.01.1973 and would be bound by the FCI (Staff) Regulations, 1971. The award dated 05.08.1991 of the Industrial Tribunal requires to be considered in a detailed manner. The reference pertains to the demand regarding the extension of option to select revised pay scales to the 15 workmen of the Vacuvator Division of KPT who were taken over by the FCI. 11. As noted above, the first question before the Tribunal pertained to the dispute regarding the pay scales of 15 workmen of Vacuvator Division who were switched over from KPT to FCI w.e.f. 01.01.1973. The second question related to the regularization of the CPF/ GRP subscription and contribution from 1965 to March, 1973 in respect of the workmen switched over from KPT to FCI from CPF to CPP scheme. While answering question No.2, the Tribunal held that the pensionery liability and CPF liability of the staff taken over by the FCI would commence from 01.03.1965 and the service of the members of the staff shall be treated as continuous from 01.03.1965. The Tribunal held that the members of the staff had subscribed to the GRP scheme and they were entitled to the pensionery benefits. The unilateral action on the part of the FCI in shifting them from GPF to CPF was found fault with by the Tribunal. Admittedly, the work charge employees were governed by the GPF scheme prior to their joining the FCI and they were switched over to the CPF scheme, which was held to be arbitrary by the Tribunal. The Tribunal further held that the transfer must necessarily be governed by Section 12A of the FCI Act. On the basis of the above findings, the Tribunal was of the opinion that there was substance in the demand made by the Appellant-Union. However, the operative portion of the award pertains only to the grant of the relief that was claimed by the 15 workmen. 12. The order dated 09.05.1996 was passed by the Government of India granting the relief of transfer of the 15 employees to the FCI w.e.f. 01.01.1973. This was in compliance with the direction issued by the Industrial Tribunal by its award dated 05.08.1991. 13. The distinction between a regular employee and a work charge employee cannot be ignored. The questions raised in the reference before the Industrial Tribunal also deals with the regular employees and work charge employees separately. The ultimate relief that was granted by the Tribunal is also restricted to the 15 workmen who were regular employees. There is no doubt that the findings recorded by the Industrial Tribunal pertaining to the arbitrary or unilateral change of Respondent No.1 from GPF to CPF are qua the work charge employees. 14. The Office Order dated 18.09.1973 by which all the employees who were working in the Vacuvator Division of the KPT were employed in the FCI also shows that regular employees and work charge employees were treated differently. Even assuming that the work charge employees also had a right to be appointed in the FCI, they cannot claim parity with the regular employees, that too in 1996. After having accepted the appointment in FCI as per the Office Order dated 18.09.1973, it is not open to the Appellant-Union to take up the cause of the work charge employees and claim on their behalf benefits similar to those granted to the regular employees. 15. The Division Bench of the High Court directed that Respondent No.1-FCI shall make payment of gratuity to those employees who shall give details, such as the dates of their joining in the KPT, by treating them as employees of the FCI. 16. Though, we are not in agreement with the judgment of the Division Bench that the award of the Industrial Tribunal did not deal with question No.2 in the reference made to it, | 0[ds]10. The nub of the dispute revolves around the entitlement of the work charge employees to the relief that was granted to the 15 regular employees. The Office Order of the FCI dated 18.09.1973 was issued under Clause XIX of the Agreement dated 08.04.1965 entered into between the President of India and the Trustees of the Port of Kandla. A clear distinction was made in the Office Order between regular employees and work charge employees. The regular employees were taken over as confirmed in their appropriate posts and they would be subject to the FCI (Staff) Regulations, 1971 regarding service conditions. According to the said agreement, the work charge employees were also taken over as regular employees from 01.01.1973 and would be bound by the FCI (Staff) Regulations, 1971. The award dated 05.08.1991 of the Industrial Tribunal requires to be considered in a detailed manner. The reference pertains to the demand regarding the extension of option to select revised pay scales to the 15 workmen of the Vacuvator Division of KPT who were taken over by the FCI13. The distinction between a regular employee and a work charge employee cannot be ignored. The questions raised in the reference before the Industrial Tribunal also deals with the regular employees and work charge employees separately. The ultimate relief that was granted by the Tribunal is also restricted to the 15 workmen who were regular employees. There is no doubt that the findings recorded by the Industrial Tribunal pertaining to the arbitrary or unilateral change of Respondent No.1 from GPF to CPF are qua the work charge employees14. The Office Order dated 18.09.1973 by which all the employees who were working in the Vacuvator Division of the KPT were employed in the FCI also shows that regular employees and work charge employees were treated differently. Even assuming that the work charge employees also had a right to be appointed in the FCI, they cannot claim parity with the regular employees, that too in 1996. After having accepted the appointment in FCI as per the Office Order dated 18.09.1973, it is not open to the Appellant-Union to take up the cause of the work charge employees and claim on their behalf benefits similar to those granted to the regular employees15. The Division Bench of the High Court directed that Respondent No.1-FCI shall make payment of gratuity to those employees who shall give details, such as the dates of their joining in the KPT, by treating them as employees of the FCI16. Though, we are not in agreement with the judgment of the Division Bench that the award of the Industrial Tribunal did not deal with question No.2 in the reference made to it | 0 | 2,825 | 484 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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15 employees. He submitted that learned Single Judge is right in allowing the Writ Petition by holding that the work charge employees cannot be discriminated in the grant of the benefit extended to only 15 regular employees. Mr. Goel supported the conclusion of the learned Single Judge that the Tribunal was right in holding that the work charge employees have to be treated to be in service prior to 01.01.1973. Mr. Goel criticized the judgment of the Division Bench by arguing that reliance could not have been placed on the operative portion of the award of the Industrial Tribunal which was restricted only to 15 employees. 9. Mr. N.K. Kaul, learned Senior Counsel appearing for Respondent No.1 submitted that the work charge employees were appointed in the FCI w.e.f. 01.01.1973 and were governed by the FCI Regulations. No grievance was raised by them till the year 1996 when the benefit of the award dated 05.08.1991 of the Industrial Tribunal was granted to the regular employees. He submitted that no parity can be claimed by the work charge employees and they should not have complained as they could have been retrenched in 1973 itself. They agreed to be bound by the FCI Regulations and all of them have retired from the FCI after working continuously from 01.01.1973. The Office Order dated 18.09.1973 clearly mentions that the employees would be governed by the FCI CPF Regulations. He commended for our consideration the approval of the judgment of the Division Bench. 10. The nub of the dispute revolves around the entitlement of the work charge employees to the relief that was granted to the 15 regular employees. The Office Order of the FCI dated 18.09.1973 was issued under Clause XIX of the Agreement dated 08.04.1965 entered into between the President of India and the Trustees of the Port of Kandla. A clear distinction was made in the Office Order between regular employees and work charge employees. The regular employees were taken over as confirmed in their appropriate posts and they would be subject to the FCI (Staff) Regulations, 1971 regarding service conditions. According to the said agreement, the work charge employees were also taken over as regular employees from 01.01.1973 and would be bound by the FCI (Staff) Regulations, 1971. The award dated 05.08.1991 of the Industrial Tribunal requires to be considered in a detailed manner. The reference pertains to the demand regarding the extension of option to select revised pay scales to the 15 workmen of the Vacuvator Division of KPT who were taken over by the FCI. 11. As noted above, the first question before the Tribunal pertained to the dispute regarding the pay scales of 15 workmen of Vacuvator Division who were switched over from KPT to FCI w.e.f. 01.01.1973. The second question related to the regularization of the CPF/ GRP subscription and contribution from 1965 to March, 1973 in respect of the workmen switched over from KPT to FCI from CPF to CPP scheme. While answering question No.2, the Tribunal held that the pensionery liability and CPF liability of the staff taken over by the FCI would commence from 01.03.1965 and the service of the members of the staff shall be treated as continuous from 01.03.1965. The Tribunal held that the members of the staff had subscribed to the GRP scheme and they were entitled to the pensionery benefits. The unilateral action on the part of the FCI in shifting them from GPF to CPF was found fault with by the Tribunal. Admittedly, the work charge employees were governed by the GPF scheme prior to their joining the FCI and they were switched over to the CPF scheme, which was held to be arbitrary by the Tribunal. The Tribunal further held that the transfer must necessarily be governed by Section 12A of the FCI Act. On the basis of the above findings, the Tribunal was of the opinion that there was substance in the demand made by the Appellant-Union. However, the operative portion of the award pertains only to the grant of the relief that was claimed by the 15 workmen. 12. The order dated 09.05.1996 was passed by the Government of India granting the relief of transfer of the 15 employees to the FCI w.e.f. 01.01.1973. This was in compliance with the direction issued by the Industrial Tribunal by its award dated 05.08.1991. 13. The distinction between a regular employee and a work charge employee cannot be ignored. The questions raised in the reference before the Industrial Tribunal also deals with the regular employees and work charge employees separately. The ultimate relief that was granted by the Tribunal is also restricted to the 15 workmen who were regular employees. There is no doubt that the findings recorded by the Industrial Tribunal pertaining to the arbitrary or unilateral change of Respondent No.1 from GPF to CPF are qua the work charge employees. 14. The Office Order dated 18.09.1973 by which all the employees who were working in the Vacuvator Division of the KPT were employed in the FCI also shows that regular employees and work charge employees were treated differently. Even assuming that the work charge employees also had a right to be appointed in the FCI, they cannot claim parity with the regular employees, that too in 1996. After having accepted the appointment in FCI as per the Office Order dated 18.09.1973, it is not open to the Appellant-Union to take up the cause of the work charge employees and claim on their behalf benefits similar to those granted to the regular employees. 15. The Division Bench of the High Court directed that Respondent No.1-FCI shall make payment of gratuity to those employees who shall give details, such as the dates of their joining in the KPT, by treating them as employees of the FCI. 16. Though, we are not in agreement with the judgment of the Division Bench that the award of the Industrial Tribunal did not deal with question No.2 in the reference made to it,
### Response:
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### Explanation:
10. The nub of the dispute revolves around the entitlement of the work charge employees to the relief that was granted to the 15 regular employees. The Office Order of the FCI dated 18.09.1973 was issued under Clause XIX of the Agreement dated 08.04.1965 entered into between the President of India and the Trustees of the Port of Kandla. A clear distinction was made in the Office Order between regular employees and work charge employees. The regular employees were taken over as confirmed in their appropriate posts and they would be subject to the FCI (Staff) Regulations, 1971 regarding service conditions. According to the said agreement, the work charge employees were also taken over as regular employees from 01.01.1973 and would be bound by the FCI (Staff) Regulations, 1971. The award dated 05.08.1991 of the Industrial Tribunal requires to be considered in a detailed manner. The reference pertains to the demand regarding the extension of option to select revised pay scales to the 15 workmen of the Vacuvator Division of KPT who were taken over by the FCI13. The distinction between a regular employee and a work charge employee cannot be ignored. The questions raised in the reference before the Industrial Tribunal also deals with the regular employees and work charge employees separately. The ultimate relief that was granted by the Tribunal is also restricted to the 15 workmen who were regular employees. There is no doubt that the findings recorded by the Industrial Tribunal pertaining to the arbitrary or unilateral change of Respondent No.1 from GPF to CPF are qua the work charge employees14. The Office Order dated 18.09.1973 by which all the employees who were working in the Vacuvator Division of the KPT were employed in the FCI also shows that regular employees and work charge employees were treated differently. Even assuming that the work charge employees also had a right to be appointed in the FCI, they cannot claim parity with the regular employees, that too in 1996. After having accepted the appointment in FCI as per the Office Order dated 18.09.1973, it is not open to the Appellant-Union to take up the cause of the work charge employees and claim on their behalf benefits similar to those granted to the regular employees15. The Division Bench of the High Court directed that Respondent No.1-FCI shall make payment of gratuity to those employees who shall give details, such as the dates of their joining in the KPT, by treating them as employees of the FCI16. Though, we are not in agreement with the judgment of the Division Bench that the award of the Industrial Tribunal did not deal with question No.2 in the reference made to it
|
S S. Sharma and Others Vs. Union of India and Others | Government servants belonging to the Scheduled Castes and Scheduled Tribes, while a single avenue only of promotion is available to other Government servants. Ex facie, the contention must fail. The two avenues of promotion pointed out by learned counsel for the petitioners consist in, one, the preparation of a list of officers falling within the field of selection, both of the general category as well as members of Scheduled Castes and Scheduled Tribes and their se lection on the basis of the principles laid down and, two, the selection of candidates of Scheduled Castes and Scheduled Tribes consequent upon the limited departmental competitive examination. While considering this submission, we must remember that resort to the limited departmental competitive examination is not simultaneous with the preparation of the list embodying the field of selection. The question of holding the examination arises only, as sub-rule (2a) of rule 12 declares, when the reserved vacancies cannot be fined because eligible officers from the Scheduled Castes and Scheduled Tribes are not available through the original process. Resort to the further process arises because of the constitutional mandate in favour of Scheduled Castes and Scheduled Tribes, because reserved vacancies must be filled if that is possible. The petitioners could complain if such a need arose in respect of general category vacancies and was not supplied. It has not been shown that the general category vacancies have remained unfilled for want of suitable candidates. No need has arisen of being compelled to resort to a further process of selection in regard to such vacancies. In the circumstances, it is not possible to see how a legitimate complaint can be laid by the petitioners on the basis alleged before us. It has been urged that the decision of the Government not to dereserve the twenty-seven vacancies is vitiated by legal malice. Having regard to the considerations to which we have adverted, we see no substance in that submission.The next contention on behalf of the petitioners is that sub rule (2a) of rule 12 enacted in 1979 operates prospectively only and cannot effect the twenty-seven vacancies to be filled in the Select List of 1977. The argument proceeds on the assumption that the Select List of 1977 must be completed during the year 1977. The submission is formed in fallacy. There i s no requirement in law that the Select List pertaining to a particular year must be finalised within that year. It is open to the Government to complete the process of selection and finalise it after the expiry of that year. It seems that when the Government found that suitable candidates belonging to the Scheduled Castes and Scheduled Tribes were not available for inclusion in the field of selection, it decided to consider the advisability of adopting some other mode of filling the reserved vacancies. It appears that on 10th August. 1978 the Government stated in Parliament that as no Scheduled Caste and Scheduled Tribe officers could be included in the field of consideration proposals for filling the vacancies through some special method had been taken up with the Union Public Service Commission. The Select List for 1977, which included already ninety-one names of officers appointed to the general category vacancies, was held in abeyance for the purpose of filling the twenty-seven reserved vacancies. After discussion with the Chairman of the Union Public Service Commission and consideration of the alternatives before it the Government decided on holding a limited departmental competitive examination. As long as the Select List was not declared final, no officer could claim any right. In the aforesaid circumstances, it is not possible to say that in holding the departmental competitive examination the Government was applying sub-rule (2a ) of rule 12, and the Regulations, retrospectively.A grievance has also been made of the circumstance that the qualifying standard for Scheduled Caste and Scheduled Tribe candidates appearing at the limited departmental competitive examination is as low as four years approved and continuous service in the Section officers Grade, while a period of ten years is insisted on in the case of officers who do not belong to either class and are considered for vacancies in the general category. The definition of "crucial date" in clause (a) of Regulation 2 of the Regulations of 1979 as a point of reference qualifying the eligibility standard, it is urged, permits an even lower eligibility standard for Scheduled Caste and Scheduled Tribe candidates. It is now well accepted, and has been affirmed by successive decisions of this Court, that relaxed eligibility criteria would be justified in the case of candidates of backward classes. The principle finds expression also in the original rule 12 of the Central Secretariat Service Rules. The record before us indicates that the lower eligibility standard was decided on after consultation with the Chairman of the Union Public Service Commission. As regards the number of years of approved service considered sufficient for eligibility, we find that even if we consider ourselves entitled to go into that question the paucity of relevant material does not permit us to express any opinion in the matter.9. Learned counsel for the petitioners has also challenged the reservation of the twenty-seven vacancies on the ground that the vacancies pertain to selection posts. On this point, we find ourselves bound by the decision of this Court in General Manager, Southern Railway v. Rangachari(1) where it has been held that Article 16(4) of the Constitution extends to selection posts.10. Finally, learned counsel for the petitioners challenges the reservation of vacancies on the ground that they are irrational, inhibiting and do not provide for healthy growth of the services besides offending the equality provisions of Part III of the Constitution. Having regard to the percentage of vacancies reserved under the off ice memorandum dated 20th July, 1974, we consider that the case falls within the. principles laid down in M. R. Balaji v. State of Mysore.(2) The majority view in State of Kerala v. N. M. Thomas(3) supports the validity of the reservation. | 0[ds]We have carefully perused the writ petitions, and it is plain that the entire scope of the petitions is limited to challenging the validity and application of the Central Secretariat Service (Amendment) Rules, 1979 and the consequent regulations for holding a limited departmental competitive examination. No relief has been sought for quashing the Office Memorandum dated 20th July, 1974. No ground has been taken in the writ petitions assailing the validity of the Office Memorandum on the basis now pressed before us. We are of opinion that the courts should ordinarily insist on the parties being confined to their specific written pleadings and should not be permitted to deviate from them by way of modification or supplementation except through the well-known process of formally applying for amendment. We do not mean that justice should be available to only those who approach the court confined in a straight jacket. But there is a procedure known to the law, and long established by codified practice and good reason, for seeking amendment of the pleadings. If undue laxity and a too easy informality is permitted to enter the proceedings of a court it will not be long before a contemptuous familiarity assails its institutional dignity and ushers i n chaos and confusion undermining its effectiveness. Like every public institution, the courts function in the security of public confidence, and public confidence resides most where institutional discipline prevails. Besides this, oral submissions raising new points for the first time tend to do grave injury to a contesting party by depriving it of the opportunity, to which the principles of natural justice hold it entitled, of adequately preparing its response.We must, therefore, decline to entertain the point now raised concerning the validity of the Officeis no right in candidates seeking to fill vacancies belonging to the general category to insist on dereservation of reserved vacancies so long as it is possible in law to fill the reserved vacancies. If at all, a claim in that behalf can arise only if no valid arrangement can be made for filling the reserved vacancies, and dereservation is called for by reason of the prohibition, in clause (v) of paragraph 2 of the Office Memorandum dated 20th July, 1974, against the carry forward of reservations from year to year in the event of an adequate number of Scheduled Caste and Scheduled Tribe candidates not being available in any particular year. Before reaching this extremity, the Government acts wholly within its power in adopting an alternative arrangement for filling the reserved vacancies. Dereservation a s a process should be resorted to only when it is not reasonably possible, within the contemplation of law, to fill the reserved vacancies. The process of dereservation would otherwise be antagonistic to the principle embodied in Article 16(4) and Article 46 of the Constitution. Paragraph 10.4 in the Brochure on Reservation of Scheduled Castes and Scheduled Tribes in the Services, prepared by the Government of India, provides that dereservation should be proposed only when such a course becomes inevitable due to non- availability of Scheduled Caste and Scheduled Tribe candidates for appointment against the reserved vacancies after having fully observed the procedure prescribed in this behalf and after applying relaxed standards in the case of such candidates. Once a decision has been taken to reserve vacancies for a backward class of citizens, the programming effected to that end should not be disturbed unless the avenues for fulfilling it have been explored and have failed. If the petitioners can succeed in showing that the provisions in the Central Secretariat Service Rules, and the consequent Regulations, providing for holding the limited departmental competitive examination are ultra vires and void and there is no evidence of any other appropriate arrangement for filling the reserved vacancies they may have a case for contending that as there is no prospect of finding suitable Scheduled Caste and Scheduled Tribe candidates for appointment to the reserved vacancies it is only reasonable that the Government should dereserve the vacancies in view of the prohibition against carrying them forward to the next year.That takes us then to the validity of sub-rule (2a ) of rule 12 of the Central Secretariat Service Rules and the Regulations of 1979. Their validity is challenged by the petitioners on the ground that they violate Articles 14, 15 and 16 of the Constitution inasmuch as they result in two avenues of promotion for Government servants belonging to the Scheduled Castes and Scheduled Tribes, while a single avenue only of promotion is available to other Government servants. Ex facie, the contention must fail. Thetwo avenues of promotion pointed out by learned counsel for the petitioners consist in, one, the preparation of a list of officers falling within the field of selection, both of the general category as well as members of Scheduled Castes and Scheduled Tribes and their se lection on the basis of the principles laid down and, two, the selection of candidates of Scheduled Castes and Scheduled Tribes consequent upon the limited departmental competitiveexamination. While considering this submission, we must remember that resort to the limited departmental competitive examination is not simultaneous with the preparation of the list embodying the field of selection. The question of holding the examination arises only, as sub-rule (2a) of rule 12 declares, when the reserved vacancies cannot be fined because eligible officers from the Scheduled Castes and Scheduled Tribes are not available through the original process. Resort to the further process arises because of the constitutional mandate in favour of Scheduled Castes and Scheduled Tribes, because reserved vacancies must be filled if that is possible. The petitioners could complain if such a need arose in respect of general category vacancies and was not supplied. It has not been shown that the general category vacancies have remained unfilled for want of suitable candidates. No need has arisen of being compelled to resort to a further process of selection in regard to such vacancies. In the circumstances, it is not possible to see how a legitimate complaint can be laid by the petitioners on the basis alleged beforei s no requirement in law that the Select List pertaining to a particular year must be finalised within that year. It is open to the Government to complete the process of selection and finalise it after the expiry of that year. It seems that when the Government found that suitable candidates belonging to the Scheduled Castes and Scheduled Tribes were not available for inclusion in the field of selection, it decided to consider the advisability of adopting some other mode of filling the reserved vacancies. It appears that on 10th August. 1978 the Government stated in Parliament that as no Scheduled Caste and Scheduled Tribe officers could be included in the field of consideration proposals for filling the vacancies through some special method had been taken up with the Union Public Service Commission. The Select List for 1977, which included already ninety-one names of officers appointed to the general category vacancies, was held in abeyance for the purpose of filling the twenty-seven reserved vacancies. After discussion with the Chairman of the Union Public Service Commission and consideration of the alternatives before it the Government decided on holding a limited departmental competitive examination. As long as the Select List was not declared final, no officer could claim any right. In the aforesaid circumstances, it is not possible to say that in holding the departmental competitive examination the Government was applying sub-rule (2a ) of rule 12, and the Regulations, retrospectively.Agrievance has also been made of the circumstance that the qualifying standard for Scheduled Caste and Scheduled Tribe candidates appearing at the limited departmental competitive examination is as low as four years approved and continuous service in the Section officers Grade, while a period of ten years is insisted on in the case of officers who do not belong to either class and are considered for vacancies in the generalcategory. The definition of "crucial date" in clause (a) of Regulation 2 of the Regulations of 1979 as a point of reference qualifying the eligibility standard, it is urged, permits an even lower eligibility standard for Scheduled Caste and Scheduled Tribe candidates. It is now well accepted, and has been affirmed by successive decisions of this Court, that relaxed eligibility criteria would be justified in the case of candidates of backward classes. The principle finds expression also in the original rule 12 of the Central Secretariat Service Rules. The record before us indicates that the lower eligibility standard was decided on after consultation with the Chairman of the Union Public Service Commission. As regards the number of years of approved service considered sufficient for eligibility, we find that even if we consider ourselves entitled to go into that question the paucity of relevant material does not permit us to express any opinion in thethis point, we find ourselves bound by the decision of this Court in General Manager, Southern Railway v. Rangachari(1) where it has been held that Article 16(4) of the Constitution extends to selectionregard to the percentage of vacancies reserved under the off ice memorandum dated 20th July, 1974, we consider that the case falls within the. principles laid down in M. R. Balaji v. State of Mysore.(2) The majority view in State of Kerala v. N. M. Thomas(3) supports the validity of theconsidering this submission, we must remember that resort to the limited departmental competitive examination is not simultaneous with the preparation of the list embodying the field of selection. The question of holding the examination arises only, as(2a) of rule 12 declares, when the reserved vacancies cannot be fined because eligible officers from the Scheduled Castes and Scheduled Tribes are not available through the original process. Resort to the further process arises because of the constitutional mandate in favour of Scheduled Castes and Scheduled Tribes, because reserved vacancies must be filled if that is possible. The petitioners could complain if such a need arose in respect of general category vacancies and was not supplied. It has not been shown that the general category vacancies have remained unfilled for want of suitable candidates. No need has arisen of being compelled to resort to a further process of selection in regard to such vacancies. In the circumstances, it is not possible to see how a legitimate complaint can be laid by the petitioners on the basis alleged befores been urged that the decision of the Government not to dereserve thevacancies is vitiated by legal malice. Having regard to the considerations to which we have adverted, we see no substance in thatargument proceeds on the assumption that the Select List of 1977 must be completed during the year1977. The submission is formed in fallacy. Therei s no requirement in law that the Select List pertaining to a particular year must be finalised within that year. It is open to the Government to complete the process of selection and finalise it after the expiry of that year. It seems that when the Government found that suitable candidates belonging to the Scheduled Castes and Scheduled Tribes were not available for inclusion in the field of selection, it decided to consider the advisability of adopting some other mode of filling the reserved vacancies. It appears that on 10th August. 1978 the Government stated in Parliament that as no Scheduled Caste and Scheduled Tribe officers could be included in the field of consideration proposals for filling the vacancies through some special method had been taken up with the Union Public Service Commission. The Select List for 1977, which included alreadynames of officers appointed to the general category vacancies, was held in abeyance for the purpose of filling thereserved vacancies. After discussion with the Chairman of the Union Public Service Commission and consideration of the alternatives before it the Government decided on holding a limited departmental competitive examination. As long as the Select List was not declared final, no officer could claim any right. In the aforesaid circumstances, it is not possible to say that in holding the departmental competitive examination the Government was applying(2a ) of rule 12, and the Regulations,s point, we find ourselves bound by the decision of this Court in General Manager, Southern Railway v. Rangachari(1) where it has been held that Article 16(4) of the Constitution extends to selectionregard to the percentage of vacancies reserved under the off ice memorandum dated 20th July, 1974, we consider that the case falls within the. principles laid down in M. R. Balaji v. State of Mysore.(2) The majority view in State of Kerala v. N. M. Thomas(3) supports the validity of the | 0 | 3,284 | 2,283 | ### 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:
Government servants belonging to the Scheduled Castes and Scheduled Tribes, while a single avenue only of promotion is available to other Government servants. Ex facie, the contention must fail. The two avenues of promotion pointed out by learned counsel for the petitioners consist in, one, the preparation of a list of officers falling within the field of selection, both of the general category as well as members of Scheduled Castes and Scheduled Tribes and their se lection on the basis of the principles laid down and, two, the selection of candidates of Scheduled Castes and Scheduled Tribes consequent upon the limited departmental competitive examination. While considering this submission, we must remember that resort to the limited departmental competitive examination is not simultaneous with the preparation of the list embodying the field of selection. The question of holding the examination arises only, as sub-rule (2a) of rule 12 declares, when the reserved vacancies cannot be fined because eligible officers from the Scheduled Castes and Scheduled Tribes are not available through the original process. Resort to the further process arises because of the constitutional mandate in favour of Scheduled Castes and Scheduled Tribes, because reserved vacancies must be filled if that is possible. The petitioners could complain if such a need arose in respect of general category vacancies and was not supplied. It has not been shown that the general category vacancies have remained unfilled for want of suitable candidates. No need has arisen of being compelled to resort to a further process of selection in regard to such vacancies. In the circumstances, it is not possible to see how a legitimate complaint can be laid by the petitioners on the basis alleged before us. It has been urged that the decision of the Government not to dereserve the twenty-seven vacancies is vitiated by legal malice. Having regard to the considerations to which we have adverted, we see no substance in that submission.The next contention on behalf of the petitioners is that sub rule (2a) of rule 12 enacted in 1979 operates prospectively only and cannot effect the twenty-seven vacancies to be filled in the Select List of 1977. The argument proceeds on the assumption that the Select List of 1977 must be completed during the year 1977. The submission is formed in fallacy. There i s no requirement in law that the Select List pertaining to a particular year must be finalised within that year. It is open to the Government to complete the process of selection and finalise it after the expiry of that year. It seems that when the Government found that suitable candidates belonging to the Scheduled Castes and Scheduled Tribes were not available for inclusion in the field of selection, it decided to consider the advisability of adopting some other mode of filling the reserved vacancies. It appears that on 10th August. 1978 the Government stated in Parliament that as no Scheduled Caste and Scheduled Tribe officers could be included in the field of consideration proposals for filling the vacancies through some special method had been taken up with the Union Public Service Commission. The Select List for 1977, which included already ninety-one names of officers appointed to the general category vacancies, was held in abeyance for the purpose of filling the twenty-seven reserved vacancies. After discussion with the Chairman of the Union Public Service Commission and consideration of the alternatives before it the Government decided on holding a limited departmental competitive examination. As long as the Select List was not declared final, no officer could claim any right. In the aforesaid circumstances, it is not possible to say that in holding the departmental competitive examination the Government was applying sub-rule (2a ) of rule 12, and the Regulations, retrospectively.A grievance has also been made of the circumstance that the qualifying standard for Scheduled Caste and Scheduled Tribe candidates appearing at the limited departmental competitive examination is as low as four years approved and continuous service in the Section officers Grade, while a period of ten years is insisted on in the case of officers who do not belong to either class and are considered for vacancies in the general category. The definition of "crucial date" in clause (a) of Regulation 2 of the Regulations of 1979 as a point of reference qualifying the eligibility standard, it is urged, permits an even lower eligibility standard for Scheduled Caste and Scheduled Tribe candidates. It is now well accepted, and has been affirmed by successive decisions of this Court, that relaxed eligibility criteria would be justified in the case of candidates of backward classes. The principle finds expression also in the original rule 12 of the Central Secretariat Service Rules. The record before us indicates that the lower eligibility standard was decided on after consultation with the Chairman of the Union Public Service Commission. As regards the number of years of approved service considered sufficient for eligibility, we find that even if we consider ourselves entitled to go into that question the paucity of relevant material does not permit us to express any opinion in the matter.9. Learned counsel for the petitioners has also challenged the reservation of the twenty-seven vacancies on the ground that the vacancies pertain to selection posts. On this point, we find ourselves bound by the decision of this Court in General Manager, Southern Railway v. Rangachari(1) where it has been held that Article 16(4) of the Constitution extends to selection posts.10. Finally, learned counsel for the petitioners challenges the reservation of vacancies on the ground that they are irrational, inhibiting and do not provide for healthy growth of the services besides offending the equality provisions of Part III of the Constitution. Having regard to the percentage of vacancies reserved under the off ice memorandum dated 20th July, 1974, we consider that the case falls within the. principles laid down in M. R. Balaji v. State of Mysore.(2) The majority view in State of Kerala v. N. M. Thomas(3) supports the validity of the reservation.
### Response:
0
### Explanation:
that on 10th August. 1978 the Government stated in Parliament that as no Scheduled Caste and Scheduled Tribe officers could be included in the field of consideration proposals for filling the vacancies through some special method had been taken up with the Union Public Service Commission. The Select List for 1977, which included already ninety-one names of officers appointed to the general category vacancies, was held in abeyance for the purpose of filling the twenty-seven reserved vacancies. After discussion with the Chairman of the Union Public Service Commission and consideration of the alternatives before it the Government decided on holding a limited departmental competitive examination. As long as the Select List was not declared final, no officer could claim any right. In the aforesaid circumstances, it is not possible to say that in holding the departmental competitive examination the Government was applying sub-rule (2a ) of rule 12, and the Regulations, retrospectively.Agrievance has also been made of the circumstance that the qualifying standard for Scheduled Caste and Scheduled Tribe candidates appearing at the limited departmental competitive examination is as low as four years approved and continuous service in the Section officers Grade, while a period of ten years is insisted on in the case of officers who do not belong to either class and are considered for vacancies in the generalcategory. The definition of "crucial date" in clause (a) of Regulation 2 of the Regulations of 1979 as a point of reference qualifying the eligibility standard, it is urged, permits an even lower eligibility standard for Scheduled Caste and Scheduled Tribe candidates. It is now well accepted, and has been affirmed by successive decisions of this Court, that relaxed eligibility criteria would be justified in the case of candidates of backward classes. The principle finds expression also in the original rule 12 of the Central Secretariat Service Rules. The record before us indicates that the lower eligibility standard was decided on after consultation with the Chairman of the Union Public Service Commission. As regards the number of years of approved service considered sufficient for eligibility, we find that even if we consider ourselves entitled to go into that question the paucity of relevant material does not permit us to express any opinion in thethis point, we find ourselves bound by the decision of this Court in General Manager, Southern Railway v. Rangachari(1) where it has been held that Article 16(4) of the Constitution extends to selectionregard to the percentage of vacancies reserved under the off ice memorandum dated 20th July, 1974, we consider that the case falls within the. principles laid down in M. R. Balaji v. State of Mysore.(2) The majority view in State of Kerala v. N. M. Thomas(3) supports the validity of theconsidering this submission, we must remember that resort to the limited departmental competitive examination is not simultaneous with the preparation of the list embodying the field of selection. The question of holding the examination arises only, as(2a) of rule 12 declares, when the reserved vacancies cannot be fined because eligible officers from the Scheduled Castes and Scheduled Tribes are not available through the original process. Resort to the further process arises because of the constitutional mandate in favour of Scheduled Castes and Scheduled Tribes, because reserved vacancies must be filled if that is possible. The petitioners could complain if such a need arose in respect of general category vacancies and was not supplied. It has not been shown that the general category vacancies have remained unfilled for want of suitable candidates. No need has arisen of being compelled to resort to a further process of selection in regard to such vacancies. In the circumstances, it is not possible to see how a legitimate complaint can be laid by the petitioners on the basis alleged befores been urged that the decision of the Government not to dereserve thevacancies is vitiated by legal malice. Having regard to the considerations to which we have adverted, we see no substance in thatargument proceeds on the assumption that the Select List of 1977 must be completed during the year1977. The submission is formed in fallacy. Therei s no requirement in law that the Select List pertaining to a particular year must be finalised within that year. It is open to the Government to complete the process of selection and finalise it after the expiry of that year. It seems that when the Government found that suitable candidates belonging to the Scheduled Castes and Scheduled Tribes were not available for inclusion in the field of selection, it decided to consider the advisability of adopting some other mode of filling the reserved vacancies. It appears that on 10th August. 1978 the Government stated in Parliament that as no Scheduled Caste and Scheduled Tribe officers could be included in the field of consideration proposals for filling the vacancies through some special method had been taken up with the Union Public Service Commission. The Select List for 1977, which included alreadynames of officers appointed to the general category vacancies, was held in abeyance for the purpose of filling thereserved vacancies. After discussion with the Chairman of the Union Public Service Commission and consideration of the alternatives before it the Government decided on holding a limited departmental competitive examination. As long as the Select List was not declared final, no officer could claim any right. In the aforesaid circumstances, it is not possible to say that in holding the departmental competitive examination the Government was applying(2a ) of rule 12, and the Regulations,s point, we find ourselves bound by the decision of this Court in General Manager, Southern Railway v. Rangachari(1) where it has been held that Article 16(4) of the Constitution extends to selectionregard to the percentage of vacancies reserved under the off ice memorandum dated 20th July, 1974, we consider that the case falls within the. principles laid down in M. R. Balaji v. State of Mysore.(2) The majority view in State of Kerala v. N. M. Thomas(3) supports the validity of the
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M/s. Motipur Zamindary Company Private Ltd Vs. State of Bihar | conferred by Section 6 of the Bihar Sales Tax Act, 1947 (Bihar Act XIX of 1947), and in supersession of all the previous notifications on the subject, the Governor of Bihar is pleased to direct that no tax shall be payable under the said Act on the sale of goods specified in the second column of the schedule hereto annexed subject to the exceptions, if any, set out in the corresponding entry in the third column thereof.THE SCHEDULESerial description No. of goodsException subject to which the exemption has been allowed.1. .....................................2. .....................................3. .....................................4. .....................................5. .....................................6. Green vegetables other than potatoesExcept when sold in sealed containers.......................................The question raised is that sugar-cane falls within the term "green vegetables" in entry 6 of the Schedule and is therefore exempt from assessment to Sales tax. In support of this contention counsel for the appellant relied upon a judgment of the Bombay High Court, State of Bombay v. R. S. Phadtare 1956-7 STC 495 : (AIR 1956 Bom 496 ) where it was held that sugar-cane is "fresh vegetable" and is therefore exempt from Sales tax under a similar notification issued under the Bombay Sales Tax Act, ChagJa, C. J., there observed at p. 496 (of STC) : (at p. 496 of AIR) as follows :"In its plain and natural meaning a vegetable clearly is wide enough to cover sugar-cane; but what is urged by the Advocate-General is that we must not give it that wide meaning but must give it the popular meaning as understood by people who deal in vegetables or eat vegetables, and it is urged that from that narrow and restricted point of view sugar-cane is not vegetable. This is a taxing statute and if two constructions are possible we must lean in favour, of that construction which gives relief to the subject. That was exactly the approach of the Sales Tax Tribunal and in our opinion that approach was a very proper one".This observation is not in accord with the opinion given by this Court in Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, Akola, AIR 1961 SC 1325 in which under an almost identical entry it was herd that "betel leaves" is not included in the term "vegetables". After quoting with approval a passage from the judgment of the Nagpur High Court, Madhya Pradesh Pan Merchants Association v. state of Madhya Pradesh (1956) 7 STC 99 ; ((S) AIR 1956 Nag 54), this court said :"The word vegetables in taxing statutes is to be understood as in common parlance i.e. denoting class of vegetables which are grown in a kitchen garden or in a farm and are used for the table." .If that is the meaning of the ward vegetables sugar-cane cannot fall within entry 6 which relates to green vegetables. In Websters dictionary "sugar-cane" has been defined as "a grass extensively grown in tropical and warm regions for its sugar" and in Oxford dictionary it is defined as "a fall perennial grass cultivated in tropical and sub-tropical countries and forming the chief source of unmanufactured sugar". Therefore it cannot be said that sugar-cane falls within the definition of the words "green vegetables."5. The second question which was raised before us and which arises in the petitions under Art. 32 is that the appellant company is not a "dealer" within the meaning of the word as defined in S. 2 (c) of the Act which is as follows :."dealer means any person who sells or supplies any goods (including goods sold or supplied in the execution of a contract whether for commission, remuneration or otherwise and includes any Firm or a Hindu joint family, the Government and any society, club or association which sells or supplies goods to its members."The words of this sub-section are very wide and cover the case of the appellant and therefore this point is also without substance and must be rejected.But it was argued that the definition of the word "dealer" in the Act which was amended by Bihar Annual Finance Act, 1950, is applicable only for the financial year beginning April 1, 1950, and not for subsequent years and for that aid was sought from the preamble to the Bihar Annual Finance Act, 1950. That preamble is as follows :-"Whereas it is expedient to amend the Bihar Sales Tax Act, 1947 and the Bihar Agricultural Income Tax Act, 1948. to levy a tax on passengers " and goods carried by public service vehicles an public carriers and to lay down rates on Sales Tax payable under Bihar Sales Tax Act, 1947 to fix limit of agricultural income to lay down rates of agricultural Income Tax and Super Tax chargeable under Bihar Agricultural Income Tax Act, 1948 for the financial year beginning on the 1st day of April, 1950 and to make further provisions in connection with the finance of this State of Bihar."The preamble cannot limit or change the meaning of the plain words of S. 2 (c) of the Act which apply to the case of the appellant and therefore the amended section is applicable to the present case. It is an erroneous approach to the question to say that because of the words "for the financial year beginning on the first of April 1950" in the particular context in the preamble, the definition of the word "dealer was amended only for one year, Nothing has been shown indicating that section (2) (i) of Bihar Annual Finance Act intended to effect a temporary amendment in the previous definition of the word "dealer" in cl. (c) of S.2 of the Act. The contention is therefore repelled.6. It was also submitted that the assent of the President was not given to the Bihar Annual Finance Act, 1950. In our opinion that submission is equally without force because tax on sale of goods is a matter entirely within entry 54 of the State List and the amendment made in the definition of the word "dealer" in the Act did not require the assent of the President. | 0[ds]Madhya Pradesh Pan Merchants Association v. state of Madhya Pradesh (1956) 7 STC 99 ; ((S) AIR 1956 Nag 54), this court saidword vegetables in taxing statutes is to be understood as in common parlance i.e. denoting class of vegetables which are grown in a kitchen garden or in a farm and are used for the table."that is the meaning of the ward vegetables sugar-cane cannot fall within entry 6 which relates to green vegetables. In Websters dictionary "sugar-cane" has been defined as "a grass extensively grown in tropical and warm regions for its sugar" and in Oxford dictionary it is defined as "a fall perennial grass cultivated in tropical and sub-tropical countries and forming the chief source of unmanufactured sugar". Therefore it cannot be said that sugar-cane falls within the definition of the words "greenwords of this sub-section are very wide and cover the case of the appellant and therefore this point is also without substance and must be rejected.In our opinion that submission is equally without force because tax on sale of goods is a matter entirely within entry 54 of the State List and the amendment made in the definition of the word "dealer" in the Act did not require the assent of the President. | 0 | 1,659 | 237 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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conferred by Section 6 of the Bihar Sales Tax Act, 1947 (Bihar Act XIX of 1947), and in supersession of all the previous notifications on the subject, the Governor of Bihar is pleased to direct that no tax shall be payable under the said Act on the sale of goods specified in the second column of the schedule hereto annexed subject to the exceptions, if any, set out in the corresponding entry in the third column thereof.THE SCHEDULESerial description No. of goodsException subject to which the exemption has been allowed.1. .....................................2. .....................................3. .....................................4. .....................................5. .....................................6. Green vegetables other than potatoesExcept when sold in sealed containers.......................................The question raised is that sugar-cane falls within the term "green vegetables" in entry 6 of the Schedule and is therefore exempt from assessment to Sales tax. In support of this contention counsel for the appellant relied upon a judgment of the Bombay High Court, State of Bombay v. R. S. Phadtare 1956-7 STC 495 : (AIR 1956 Bom 496 ) where it was held that sugar-cane is "fresh vegetable" and is therefore exempt from Sales tax under a similar notification issued under the Bombay Sales Tax Act, ChagJa, C. J., there observed at p. 496 (of STC) : (at p. 496 of AIR) as follows :"In its plain and natural meaning a vegetable clearly is wide enough to cover sugar-cane; but what is urged by the Advocate-General is that we must not give it that wide meaning but must give it the popular meaning as understood by people who deal in vegetables or eat vegetables, and it is urged that from that narrow and restricted point of view sugar-cane is not vegetable. This is a taxing statute and if two constructions are possible we must lean in favour, of that construction which gives relief to the subject. That was exactly the approach of the Sales Tax Tribunal and in our opinion that approach was a very proper one".This observation is not in accord with the opinion given by this Court in Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, Akola, AIR 1961 SC 1325 in which under an almost identical entry it was herd that "betel leaves" is not included in the term "vegetables". After quoting with approval a passage from the judgment of the Nagpur High Court, Madhya Pradesh Pan Merchants Association v. state of Madhya Pradesh (1956) 7 STC 99 ; ((S) AIR 1956 Nag 54), this court said :"The word vegetables in taxing statutes is to be understood as in common parlance i.e. denoting class of vegetables which are grown in a kitchen garden or in a farm and are used for the table." .If that is the meaning of the ward vegetables sugar-cane cannot fall within entry 6 which relates to green vegetables. In Websters dictionary "sugar-cane" has been defined as "a grass extensively grown in tropical and warm regions for its sugar" and in Oxford dictionary it is defined as "a fall perennial grass cultivated in tropical and sub-tropical countries and forming the chief source of unmanufactured sugar". Therefore it cannot be said that sugar-cane falls within the definition of the words "green vegetables."5. The second question which was raised before us and which arises in the petitions under Art. 32 is that the appellant company is not a "dealer" within the meaning of the word as defined in S. 2 (c) of the Act which is as follows :."dealer means any person who sells or supplies any goods (including goods sold or supplied in the execution of a contract whether for commission, remuneration or otherwise and includes any Firm or a Hindu joint family, the Government and any society, club or association which sells or supplies goods to its members."The words of this sub-section are very wide and cover the case of the appellant and therefore this point is also without substance and must be rejected.But it was argued that the definition of the word "dealer" in the Act which was amended by Bihar Annual Finance Act, 1950, is applicable only for the financial year beginning April 1, 1950, and not for subsequent years and for that aid was sought from the preamble to the Bihar Annual Finance Act, 1950. That preamble is as follows :-"Whereas it is expedient to amend the Bihar Sales Tax Act, 1947 and the Bihar Agricultural Income Tax Act, 1948. to levy a tax on passengers " and goods carried by public service vehicles an public carriers and to lay down rates on Sales Tax payable under Bihar Sales Tax Act, 1947 to fix limit of agricultural income to lay down rates of agricultural Income Tax and Super Tax chargeable under Bihar Agricultural Income Tax Act, 1948 for the financial year beginning on the 1st day of April, 1950 and to make further provisions in connection with the finance of this State of Bihar."The preamble cannot limit or change the meaning of the plain words of S. 2 (c) of the Act which apply to the case of the appellant and therefore the amended section is applicable to the present case. It is an erroneous approach to the question to say that because of the words "for the financial year beginning on the first of April 1950" in the particular context in the preamble, the definition of the word "dealer was amended only for one year, Nothing has been shown indicating that section (2) (i) of Bihar Annual Finance Act intended to effect a temporary amendment in the previous definition of the word "dealer" in cl. (c) of S.2 of the Act. The contention is therefore repelled.6. It was also submitted that the assent of the President was not given to the Bihar Annual Finance Act, 1950. In our opinion that submission is equally without force because tax on sale of goods is a matter entirely within entry 54 of the State List and the amendment made in the definition of the word "dealer" in the Act did not require the assent of the President.
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Madhya Pradesh Pan Merchants Association v. state of Madhya Pradesh (1956) 7 STC 99 ; ((S) AIR 1956 Nag 54), this court saidword vegetables in taxing statutes is to be understood as in common parlance i.e. denoting class of vegetables which are grown in a kitchen garden or in a farm and are used for the table."that is the meaning of the ward vegetables sugar-cane cannot fall within entry 6 which relates to green vegetables. In Websters dictionary "sugar-cane" has been defined as "a grass extensively grown in tropical and warm regions for its sugar" and in Oxford dictionary it is defined as "a fall perennial grass cultivated in tropical and sub-tropical countries and forming the chief source of unmanufactured sugar". Therefore it cannot be said that sugar-cane falls within the definition of the words "greenwords of this sub-section are very wide and cover the case of the appellant and therefore this point is also without substance and must be rejected.In our opinion that submission is equally without force because tax on sale of goods is a matter entirely within entry 54 of the State List and the amendment made in the definition of the word "dealer" in the Act did not require the assent of the President.
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A MURUGESAN Vs. SMT. JAMUNA RANI | dismissed the application. It is contended that the appellate and the revisional courts also committed same error in rejecting the plea of the appellant by looking at the past events. It is mainly contended that when the application is filed under Order IX Rule 13 of CPC, the relevant consideration should have been confined to whether the appellant herein has shown any sufficient cause or not for not appearing in the matter when it was called on 16.03.2009. It is submitted that the reasons assigned in the impugned orders for rejection of the application is irrelevant. In support of his argument, learned counsel for the appellant has placed reliance on the judgment of this Court in the case of G.P. Srivastava vs. R.K. Raizada and Others reported in 2000(3) SCC 54. 8. On the other hand, it is contended by the learned counsel for the respondent that suit was filed by the respondent for specific performance of the contract. 9. It is submitted that out of total consideration of Rs.3,00,000/-(Rupees Three Lakhs), he has already paid Rs.2,25,000/-(Rupees Two Lakh Twenty-Five Thousand) and deposited the balance amount of Rs.75,000/-(Rupees Seventy-Five Thousand) in the court. It is contended by the learned counsel for the respondent that though the suit was of the year 1997, the appellant-defendant tried his best to prolong the litigation on one pretext or the other. It is submitted that in view of the concurrent findings recorded by the courts below, no case is made out to interfere with the same. 10. We have considered the submissions of the learned counsel appearing on both the sides and perused the order of the Trial Court, rejecting the application filed by the appellant under Order IX Rule 13 of CPC and further orders passed in Civil Miscellaneous Appeal as well as in Civil Revision Petition. 11. From a perusal of the order of the Trial Court, it is clear that the Trial Court has taken into consideration the past conduct of the appellant-defendant in the suit, instead of confining the consideration as to whether the appellant has shown sufficient cause or not for not appearing in the matter on 16.03.2009. It is fairly well settled that when an application is filed for setting aside ex-parte decree under Order IX Rule 13 of CPC, the only aspect which is required to be considered is whether any sufficient cause is shown for absence in the matter when the matter was called. Without recording the specific finding, on the plea of the appellant that there was sufficient cause, the Trial Court has committed error in rejecting the application under Order IX Rule 13 of CPC. Even the appellate and the revisional court have not considered the matter in proper perspective and rejected the claim of the appellant. The judgment in a case of G.P. Srivastava (supra) supports the case of the appellant. In the aforesaid judgment, the very issue was fallen for consideration before this Court. The relevant paragraph no.7 reads as under: 7. Under Order IX Rule 13 CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any sufficient cause from appearing when the suit was called on for hearing. Unless sufficient cause is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to aside an ex parte decree. The words was prevented by any sufficient cause from appearing must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case The sufficient cause for non- appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If sufficient cause is made out for non- appearance of the defendant on the date fixed for hearing when ex pate proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits. 12. The aforesaid view taken by this Court in the judgment referred above supports the case of the appellant. It is further brought to our notice that on the aforesaid date, i.e., 16.03.2009, on which date the suit was listed for trial, in view of the boycott of the courts by the advocates, all other cases were adjourned and only this case was proceeded and ex- parte decree was passed. 13. As the suit is for a substantive relief, i.e., for grant of decree of specific performance, and further we are satisfied that the appellant has shown sufficient cause for not appearing in the matter when the matter was called on 16.03.2009, we are of the view that it is a fit case to allow the application filed by the appellant, by setting aside the impugned orders. All the courts below committed error in rejecting the application on the grounds which are not relevant to consider the application filed under Order IX Rule 13 of CPC. 14. We are conscious of the fact that all the three courts have held against the appellant, but if we allow the impugned orders to stand, it will result in miscarriage of justice. | 1[ds]10. We have considered the submissions of the learned counsel appearing on both the sides and perused the order of the Trial Court, rejecting the application filed by the appellant under Order IX Rule 13 of CPC and further orders passed in Civil Miscellaneous Appeal as well as in Civil Revision Petition11. From a perusal of the order of the Trial Court, it is clear that the Trial Court has taken into consideration the past conduct of the appellant-defendant in the suit, instead of confining the consideration as to whether the appellant has shown sufficient cause or not for not appearing in the matter on 16.03.2009. It is fairly well settled that when an application is filed for setting aside ex-parte decree under Order IX Rule 13 of CPC, the only aspect which is required to be considered is whether any sufficient cause is shown for absence in the matter when the matter was called. Without recording the specific finding, on the plea of the appellant that there was sufficient cause, the Trial Court has committed error in rejecting the application under Order IX Rule 13 of CPC. Even the appellate and the revisional court have not considered the matter in proper perspective and rejected the claim of the appellant. The judgment in a case of G.P. Srivastava (supra) supports the case of the appellant12. The aforesaid view taken by this Court in the judgment referred above supports the case of the appellant. It is further brought to our notice that on the aforesaid date, i.e., 16.03.2009, on which date the suit was listed for trial, in view of the boycott of the courts by the advocates, all other cases were adjourned and only this case was proceeded and ex- parte decree was passed13. As the suit is for a substantive relief, i.e., for grant of decree of specific performance, and further we are satisfied that the appellant has shown sufficient cause for not appearing in the matter when the matter was called on 16.03.2009, we are of the view that it is a fit case to allow the application filed by the appellant, by setting aside the impugned orders. All the courts below committed error in rejecting the application on the grounds which are not relevant to consider the application filed under Order IX Rule 13 of CPC14. We are conscious of the fact that all the three courts have held against the appellant, but if we allow the impugned orders to stand, it will result in miscarriage of justice. | 1 | 1,702 | 458 | ### Instruction:
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dismissed the application. It is contended that the appellate and the revisional courts also committed same error in rejecting the plea of the appellant by looking at the past events. It is mainly contended that when the application is filed under Order IX Rule 13 of CPC, the relevant consideration should have been confined to whether the appellant herein has shown any sufficient cause or not for not appearing in the matter when it was called on 16.03.2009. It is submitted that the reasons assigned in the impugned orders for rejection of the application is irrelevant. In support of his argument, learned counsel for the appellant has placed reliance on the judgment of this Court in the case of G.P. Srivastava vs. R.K. Raizada and Others reported in 2000(3) SCC 54. 8. On the other hand, it is contended by the learned counsel for the respondent that suit was filed by the respondent for specific performance of the contract. 9. It is submitted that out of total consideration of Rs.3,00,000/-(Rupees Three Lakhs), he has already paid Rs.2,25,000/-(Rupees Two Lakh Twenty-Five Thousand) and deposited the balance amount of Rs.75,000/-(Rupees Seventy-Five Thousand) in the court. It is contended by the learned counsel for the respondent that though the suit was of the year 1997, the appellant-defendant tried his best to prolong the litigation on one pretext or the other. It is submitted that in view of the concurrent findings recorded by the courts below, no case is made out to interfere with the same. 10. We have considered the submissions of the learned counsel appearing on both the sides and perused the order of the Trial Court, rejecting the application filed by the appellant under Order IX Rule 13 of CPC and further orders passed in Civil Miscellaneous Appeal as well as in Civil Revision Petition. 11. From a perusal of the order of the Trial Court, it is clear that the Trial Court has taken into consideration the past conduct of the appellant-defendant in the suit, instead of confining the consideration as to whether the appellant has shown sufficient cause or not for not appearing in the matter on 16.03.2009. It is fairly well settled that when an application is filed for setting aside ex-parte decree under Order IX Rule 13 of CPC, the only aspect which is required to be considered is whether any sufficient cause is shown for absence in the matter when the matter was called. Without recording the specific finding, on the plea of the appellant that there was sufficient cause, the Trial Court has committed error in rejecting the application under Order IX Rule 13 of CPC. Even the appellate and the revisional court have not considered the matter in proper perspective and rejected the claim of the appellant. The judgment in a case of G.P. Srivastava (supra) supports the case of the appellant. In the aforesaid judgment, the very issue was fallen for consideration before this Court. The relevant paragraph no.7 reads as under: 7. Under Order IX Rule 13 CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any sufficient cause from appearing when the suit was called on for hearing. Unless sufficient cause is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to aside an ex parte decree. The words was prevented by any sufficient cause from appearing must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case The sufficient cause for non- appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If sufficient cause is made out for non- appearance of the defendant on the date fixed for hearing when ex pate proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits. 12. The aforesaid view taken by this Court in the judgment referred above supports the case of the appellant. It is further brought to our notice that on the aforesaid date, i.e., 16.03.2009, on which date the suit was listed for trial, in view of the boycott of the courts by the advocates, all other cases were adjourned and only this case was proceeded and ex- parte decree was passed. 13. As the suit is for a substantive relief, i.e., for grant of decree of specific performance, and further we are satisfied that the appellant has shown sufficient cause for not appearing in the matter when the matter was called on 16.03.2009, we are of the view that it is a fit case to allow the application filed by the appellant, by setting aside the impugned orders. All the courts below committed error in rejecting the application on the grounds which are not relevant to consider the application filed under Order IX Rule 13 of CPC. 14. We are conscious of the fact that all the three courts have held against the appellant, but if we allow the impugned orders to stand, it will result in miscarriage of justice.
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10. We have considered the submissions of the learned counsel appearing on both the sides and perused the order of the Trial Court, rejecting the application filed by the appellant under Order IX Rule 13 of CPC and further orders passed in Civil Miscellaneous Appeal as well as in Civil Revision Petition11. From a perusal of the order of the Trial Court, it is clear that the Trial Court has taken into consideration the past conduct of the appellant-defendant in the suit, instead of confining the consideration as to whether the appellant has shown sufficient cause or not for not appearing in the matter on 16.03.2009. It is fairly well settled that when an application is filed for setting aside ex-parte decree under Order IX Rule 13 of CPC, the only aspect which is required to be considered is whether any sufficient cause is shown for absence in the matter when the matter was called. Without recording the specific finding, on the plea of the appellant that there was sufficient cause, the Trial Court has committed error in rejecting the application under Order IX Rule 13 of CPC. Even the appellate and the revisional court have not considered the matter in proper perspective and rejected the claim of the appellant. The judgment in a case of G.P. Srivastava (supra) supports the case of the appellant12. The aforesaid view taken by this Court in the judgment referred above supports the case of the appellant. It is further brought to our notice that on the aforesaid date, i.e., 16.03.2009, on which date the suit was listed for trial, in view of the boycott of the courts by the advocates, all other cases were adjourned and only this case was proceeded and ex- parte decree was passed13. As the suit is for a substantive relief, i.e., for grant of decree of specific performance, and further we are satisfied that the appellant has shown sufficient cause for not appearing in the matter when the matter was called on 16.03.2009, we are of the view that it is a fit case to allow the application filed by the appellant, by setting aside the impugned orders. All the courts below committed error in rejecting the application on the grounds which are not relevant to consider the application filed under Order IX Rule 13 of CPC14. We are conscious of the fact that all the three courts have held against the appellant, but if we allow the impugned orders to stand, it will result in miscarriage of justice.
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Chidambaraiyer And Others Vs. P. S. Renga Iyer And Others | 1939 is a registered copy of the partition deed by the members of the family and paragraphs 2 and 4 of that document make provision with regard to the matters in question which run as follows: x x x x x x x" Later on the learned Judges proceed to state:"We are unable to accept the arguments for the reasons stated already. It is clear as were have referred to already that for the amounts entered as credit in the family business account which was a liability payable by the family from and out of the interest under Exhibit B-1 the religious functions have to be performed and that there was a substitution of the mortgage amount under Exhibit B-3. Mr. Ramachandra Aiyar contends that there is no oral evidence about that substitutions; nor is it possible to conclude from the meagre and scanty documentary evidence let in that there has been any such substitution. The answer to this argument is that the credit amount in favour of Kolathu Iyen is only a ledger entry making the liability on the family with regard to a sum of money out of which certain charities have to be performed. In Exhibit B-3 we do not find any credit entry in the name of Kolathu Iyen as well as patasala account. Those liabilities must be deemed to have been discharged by item 1 in Exhibit B-2 namely, the mortgage amount. The result is the discharge of one liability by another and we are unable to see that such a state of things would not amount to a transfer." These observations also make it clear that the learned Judges clearly held that the mortgage interest in Ex. A-1 was transferred in discharge of the liability undertaken under Ex. B-1. But strong reliance was placed by the learned counsel for the appellants on the following concluding observation of the learned Judges :"In the present case the joint family has lost the mortgage interest and the trust has gained that interest. Therefore the transfer under Ex. B-3 must be deemed to be for valuable consideration." Relying upon this observation the learned counsel commented that the learned Judges held that a mere transfer of an interest in favour of another was in itself a transfer for valuable consideration. To accept this argument is to ignore the elaborate discussion that preceded the said observation and the relevant extracts from the judgment we have extracted earlier. In the context of the preceding discussion the said observation can only mean that the transfer in favour of a charity is discharge of the earlier obligation is a transfer for valuable consideration. Agreeing with the High Court, we hold that there was a transfer of the mortgage interest under Ex. A-1 in trust to a charity in discharge of an earlier obligation undertaken by the family to set apart a sum of Rs. 36,988-9-8 in favour of the charity. Under para, (b) of S. 9-A (10) (ii) of the Act, to attract that provision the transfer shall be for a valuable consideration. The short question, therefore, is whether the transfer in trust of a property in discharge of an earlier obligation was for valuable consideration within the meaning of para (b) of S. 9-A (10) (ii) of the Act. So stated there can only be one answer. The classic definition of "valuable consideration" is given in Currie v. Misa, (1875) 10 Ex. 153 at p. 162, thus : "A valuable consideration in the sense of the law may consist either in some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility, given suffered or undertaken by the other". Section 2(d) of the Contract Act defines consideration thus:"When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing something such act or abstinence or promise is called a consideration for the promise." So far as is relevant to the present enquiry, the content of the two definitions is practically the same, though the expression "valuable" is implied under S. 2(d) of the Contract Act, for consideration shall be "something which not only parties regard but the law can regard as having some value". From the definitions it is apparent that consideration may be negative or positive. In the present case the mortgage interest was transferred in trust to the charity. What was the consideration that passed from the charity to the family? The family was under an obligation to pay to the charity the amount set apart to it under Ex. B-1. The mortgage interest was transferred in discharge of that obligation. That is to say, the charity agreed as a consideration for the transfer of the mortgage interest not to enforce its right to recover that amount from the family. The charity gave up that right in consideration of the mortgage interest acquired by it. We therefore, hold that the family transferred the mortgage interest in trust to the charity for valuable consideration within the meaning of S. 9-A (10) (ii) (b) of the Act. It follows that the mortgage, Ex. A-1, was rightly held by the High Court not liable to be scaled down under the provisions of the Act. 15. In the reply the learned counsel for the appellants sought to raise another plea, namely, that there was no valid transfer of the mortgage deed in favour of the charity inasmuch as the said transfer was not effected by the registered document. This plea was not raised at any stage of the litigation, presumably because Ex. B-3 was a registered document. We cannot, therefore, permit the appellants to raise the plea for the first time before us. 16. In this view it is not necessary to express our opinion on the question whether para. (c) of S. 9-A (10) (ii) of the Act was attracted to the mortgage in question. | 0[ds]Later on the learned Judges proceed to state:"We are unable to accept the arguments for the reasons stated already. It is clear as were have referred to already that for the amounts entered as credit in the family business account which was a liability payable by the family from and out of the interest under Exhibit B-1 the religious functions have to be performed and that there was a substitution of the mortgage amount under Exhibit B-3. Mr. Ramachandra Aiyar contends that there is no oral evidence about that substitutions; nor is it possible to conclude from the meagre and scanty documentary evidence let in that there has been any such substitution. The answer to this argument is that the credit amount in favour of Kolathu Iyen is only a ledger entry making the liability on the family with regard to a sum of money out of which certain charities have to be performed. In Exhibit B-3 we do not find any credit entry in the name of Kolathu Iyen as well as patasala account. Those liabilities must be deemed to have been discharged by item 1 in Exhibit B-2 namely, the mortgage amount. The result is the discharge of one liability by another and we are unable to see that such a state of things would not amount to a transfer."These observations also make it clear that the learned Judges clearly held that the mortgage interest in Ex. A-1 was transferred in discharge of the liability undertaken under Ex. B-1. But strong reliance was placed by the learned counsel for the appellants on the following concluding observation of the learned Judges :"In the present case the joint family has lost the mortgage interest and the trust has gained that interest. Therefore the transfer under Ex. B-3 must be deemed to be for valuable consideration."Relying upon this observation the learned counsel commented that the learned Judges held that a mere transfer of an interest in favour of another was in itself a transfer for valuable consideration. To accept this argument is to ignore the elaborate discussion that preceded the said observation and the relevant extracts from the judgment we have extracted earlier. In the context of the preceding discussion the said observation can only mean that the transfer in favour of a charity is discharge of the earlier obligation is a transfer for valuable consideration. Agreeing with the High Court, we hold that there was a transfer of the mortgage interest under Ex. A-1 in trust to a charity in discharge of an earlier obligation undertaken by the family to set apart a sum of Rs. 36,988-9-8 in favour of the charity. Under para, (b) of S. 9-A (10) (ii) of the Act, to attract that provision the transfer shall be for a valuable consideration. The short question, therefore, is whether the transfer in trust of a property in discharge of an earlier obligation was for valuable consideration within the meaning of para (b) of S. 9-A (10) (ii) of the Act. So stated there can only be one answer. The classic definition of "valuable consideration" is given in Currie v. Misa, (1875) 10 Ex. 153 at p. 162, thus : "A valuable consideration in the sense of the law may consist either in some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility, given suffered or undertaken by the other"Section 2(d) of the Contract Act defines consideration thus:"When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing something such act or abstinence or promise is called a consideration for the promise."So far as is relevant to the present enquiry, the content of the two definitions is practically the same, though the expression "valuable" is implied under S. 2(d) of the Contract Act, for consideration shall be "something which not only parties regard but the law can regard as having some value". From the definitions it is apparent that consideration may be negative or positive. In the present case the mortgage interest was transferred in trust to the charity. What was the consideration that passed from the charity to the family? The family was under an obligation to pay to the charity the amount set apart to it under Ex. B-1. The mortgage interest was transferred in discharge of that obligation. That is to say, the charity agreed as a consideration for the transfer of the mortgage interest not to enforce its right to recover that amount from the family. The charity gave up that right in consideration of the mortgage interest acquired by it. We therefore, hold that the family transferred the mortgage interest in trust to the charity for valuable consideration within the meaning of S. 9-A (10) (ii) (b) of the Act. It follows that the mortgage, Ex. A-1, was rightly held by the High Court not liable to be scaled down under the provisions of the Act15. In the reply the learned counsel for the appellants sought to raise another plea, namely, that there was no valid transfer of the mortgage deed in favour of the charity inasmuch as the said transfer was not effected by the registered document. This plea was not raised at any stage of the litigation, presumably because Ex. B-3 was a registered document. We cannot, therefore, permit the appellants to raise the plea for the first time before us. | 0 | 3,942 | 1,044 | ### Instruction:
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1939 is a registered copy of the partition deed by the members of the family and paragraphs 2 and 4 of that document make provision with regard to the matters in question which run as follows: x x x x x x x" Later on the learned Judges proceed to state:"We are unable to accept the arguments for the reasons stated already. It is clear as were have referred to already that for the amounts entered as credit in the family business account which was a liability payable by the family from and out of the interest under Exhibit B-1 the religious functions have to be performed and that there was a substitution of the mortgage amount under Exhibit B-3. Mr. Ramachandra Aiyar contends that there is no oral evidence about that substitutions; nor is it possible to conclude from the meagre and scanty documentary evidence let in that there has been any such substitution. The answer to this argument is that the credit amount in favour of Kolathu Iyen is only a ledger entry making the liability on the family with regard to a sum of money out of which certain charities have to be performed. In Exhibit B-3 we do not find any credit entry in the name of Kolathu Iyen as well as patasala account. Those liabilities must be deemed to have been discharged by item 1 in Exhibit B-2 namely, the mortgage amount. The result is the discharge of one liability by another and we are unable to see that such a state of things would not amount to a transfer." These observations also make it clear that the learned Judges clearly held that the mortgage interest in Ex. A-1 was transferred in discharge of the liability undertaken under Ex. B-1. But strong reliance was placed by the learned counsel for the appellants on the following concluding observation of the learned Judges :"In the present case the joint family has lost the mortgage interest and the trust has gained that interest. Therefore the transfer under Ex. B-3 must be deemed to be for valuable consideration." Relying upon this observation the learned counsel commented that the learned Judges held that a mere transfer of an interest in favour of another was in itself a transfer for valuable consideration. To accept this argument is to ignore the elaborate discussion that preceded the said observation and the relevant extracts from the judgment we have extracted earlier. In the context of the preceding discussion the said observation can only mean that the transfer in favour of a charity is discharge of the earlier obligation is a transfer for valuable consideration. Agreeing with the High Court, we hold that there was a transfer of the mortgage interest under Ex. A-1 in trust to a charity in discharge of an earlier obligation undertaken by the family to set apart a sum of Rs. 36,988-9-8 in favour of the charity. Under para, (b) of S. 9-A (10) (ii) of the Act, to attract that provision the transfer shall be for a valuable consideration. The short question, therefore, is whether the transfer in trust of a property in discharge of an earlier obligation was for valuable consideration within the meaning of para (b) of S. 9-A (10) (ii) of the Act. So stated there can only be one answer. The classic definition of "valuable consideration" is given in Currie v. Misa, (1875) 10 Ex. 153 at p. 162, thus : "A valuable consideration in the sense of the law may consist either in some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility, given suffered or undertaken by the other". Section 2(d) of the Contract Act defines consideration thus:"When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing something such act or abstinence or promise is called a consideration for the promise." So far as is relevant to the present enquiry, the content of the two definitions is practically the same, though the expression "valuable" is implied under S. 2(d) of the Contract Act, for consideration shall be "something which not only parties regard but the law can regard as having some value". From the definitions it is apparent that consideration may be negative or positive. In the present case the mortgage interest was transferred in trust to the charity. What was the consideration that passed from the charity to the family? The family was under an obligation to pay to the charity the amount set apart to it under Ex. B-1. The mortgage interest was transferred in discharge of that obligation. That is to say, the charity agreed as a consideration for the transfer of the mortgage interest not to enforce its right to recover that amount from the family. The charity gave up that right in consideration of the mortgage interest acquired by it. We therefore, hold that the family transferred the mortgage interest in trust to the charity for valuable consideration within the meaning of S. 9-A (10) (ii) (b) of the Act. It follows that the mortgage, Ex. A-1, was rightly held by the High Court not liable to be scaled down under the provisions of the Act. 15. In the reply the learned counsel for the appellants sought to raise another plea, namely, that there was no valid transfer of the mortgage deed in favour of the charity inasmuch as the said transfer was not effected by the registered document. This plea was not raised at any stage of the litigation, presumably because Ex. B-3 was a registered document. We cannot, therefore, permit the appellants to raise the plea for the first time before us. 16. In this view it is not necessary to express our opinion on the question whether para. (c) of S. 9-A (10) (ii) of the Act was attracted to the mortgage in question.
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Later on the learned Judges proceed to state:"We are unable to accept the arguments for the reasons stated already. It is clear as were have referred to already that for the amounts entered as credit in the family business account which was a liability payable by the family from and out of the interest under Exhibit B-1 the religious functions have to be performed and that there was a substitution of the mortgage amount under Exhibit B-3. Mr. Ramachandra Aiyar contends that there is no oral evidence about that substitutions; nor is it possible to conclude from the meagre and scanty documentary evidence let in that there has been any such substitution. The answer to this argument is that the credit amount in favour of Kolathu Iyen is only a ledger entry making the liability on the family with regard to a sum of money out of which certain charities have to be performed. In Exhibit B-3 we do not find any credit entry in the name of Kolathu Iyen as well as patasala account. Those liabilities must be deemed to have been discharged by item 1 in Exhibit B-2 namely, the mortgage amount. The result is the discharge of one liability by another and we are unable to see that such a state of things would not amount to a transfer."These observations also make it clear that the learned Judges clearly held that the mortgage interest in Ex. A-1 was transferred in discharge of the liability undertaken under Ex. B-1. But strong reliance was placed by the learned counsel for the appellants on the following concluding observation of the learned Judges :"In the present case the joint family has lost the mortgage interest and the trust has gained that interest. Therefore the transfer under Ex. B-3 must be deemed to be for valuable consideration."Relying upon this observation the learned counsel commented that the learned Judges held that a mere transfer of an interest in favour of another was in itself a transfer for valuable consideration. To accept this argument is to ignore the elaborate discussion that preceded the said observation and the relevant extracts from the judgment we have extracted earlier. In the context of the preceding discussion the said observation can only mean that the transfer in favour of a charity is discharge of the earlier obligation is a transfer for valuable consideration. Agreeing with the High Court, we hold that there was a transfer of the mortgage interest under Ex. A-1 in trust to a charity in discharge of an earlier obligation undertaken by the family to set apart a sum of Rs. 36,988-9-8 in favour of the charity. Under para, (b) of S. 9-A (10) (ii) of the Act, to attract that provision the transfer shall be for a valuable consideration. The short question, therefore, is whether the transfer in trust of a property in discharge of an earlier obligation was for valuable consideration within the meaning of para (b) of S. 9-A (10) (ii) of the Act. So stated there can only be one answer. The classic definition of "valuable consideration" is given in Currie v. Misa, (1875) 10 Ex. 153 at p. 162, thus : "A valuable consideration in the sense of the law may consist either in some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility, given suffered or undertaken by the other"Section 2(d) of the Contract Act defines consideration thus:"When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing something such act or abstinence or promise is called a consideration for the promise."So far as is relevant to the present enquiry, the content of the two definitions is practically the same, though the expression "valuable" is implied under S. 2(d) of the Contract Act, for consideration shall be "something which not only parties regard but the law can regard as having some value". From the definitions it is apparent that consideration may be negative or positive. In the present case the mortgage interest was transferred in trust to the charity. What was the consideration that passed from the charity to the family? The family was under an obligation to pay to the charity the amount set apart to it under Ex. B-1. The mortgage interest was transferred in discharge of that obligation. That is to say, the charity agreed as a consideration for the transfer of the mortgage interest not to enforce its right to recover that amount from the family. The charity gave up that right in consideration of the mortgage interest acquired by it. We therefore, hold that the family transferred the mortgage interest in trust to the charity for valuable consideration within the meaning of S. 9-A (10) (ii) (b) of the Act. It follows that the mortgage, Ex. A-1, was rightly held by the High Court not liable to be scaled down under the provisions of the Act15. In the reply the learned counsel for the appellants sought to raise another plea, namely, that there was no valid transfer of the mortgage deed in favour of the charity inasmuch as the said transfer was not effected by the registered document. This plea was not raised at any stage of the litigation, presumably because Ex. B-3 was a registered document. We cannot, therefore, permit the appellants to raise the plea for the first time before us.
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SHANKAR Vs. SURENDRA SINGH RAWAT (D) THR. L.RS | the respondents/plaintiffs in the preliminary issue by order dated 13.02.1998. 7. While considering the question relating to the jurisdiction of the Court, the High Court in its judgment observed as under: An identical case, the Allahabad High Court in Ram Awalamb and others vs. Jata Shankar and others reported in AIR 1969 Allahabad P/526 has held that if the suit for perpetual injunction and mandatory injunction along with the ancillary relief of possession have been filed before the Civil Court, the Civil Court had the right to entertain the said suit under Section 9 of the Civil Procedure Code. Learned counsel for the defendants/appellants relied upon the judgment of the Apex Court in Deokinandan and others vs. Surajpal and others, 1996 Revenue Decisions P/70. In that case, the suit for the possession over the property governed by the U.P.Z.A & L.R. Act was filed for the possession of the said property. The Honble Apex Court held that the suit is maintainable in the Revenue Court. The above proposition is in consonance with Section 331 of the U.P.Z.A & L.R. Act. This case is not applicable in the case in hand. The plaintiff/respondents had sought the main relief of perpetual injunction as well as mandatory injunction in the suit in hand. 8. Since the issue relating to the jurisdiction of the Court and the suit being barred by the provisions of Section 331 of the U.P. Zamindari Abolition Act has been decided in favour of the respondents and in the light of the above findings recorded by the High Court, in our view, the judgment of the Courts below do not suffer from any infirmity warranting interference. 9. In Chheda Singh vs. Town Area Committee, Akbarpur and Another reported in (1991) 1 SCC 266, this Court held that the jurisdiction of the Civil Court is only ousted by virtue of Section 331 of the UP Zamindari Abolition and Land Reforms Act, 1950. The ouster of Civil Courts jurisdiction under the said Act would only arise if the defendant was tenant under the said Act or in other words, there existed such basic fact, before the coming in force of the said Act, to qualify him to be tenant. In this case, the appellants have claimed possession by purchase and in the alternative adverse possession. The Courts below rightly found that the suit was not barred and the Civil Court had jurisdiction to entertain the same. 10. In Kali Prasad and Others vs. Deputy Director of Consolidation and Others reported in (2000) 6 SCC 640 , this Court reiterated that Section 331 read with Schedule II bars the jurisdiction of the Civil Court only in respect of such reliefs which are mentioned in Schedule II and for adjudication of which, a specific authority has been prescribed here under. In the aforesaid case, this Court held that Section 209, which contemplates filing a suit for adjustment of a person occupying land without title, does not postulate eviction of asamis. If Section 209 is not applicable, the consequential provisions contained in Section 210 would also not be attracted. 11. In Shri Ram and Another vs. 1st Addl. Distt. Judge and Others reported in (2001) 3 SCC 24 , this Court held that: 4........the question that now arises for consideration is whether a recorded tenure-holder having prima facie title in his favour and in possession is required to file a suit in the Revenue Court or the civil court has jurisdiction to entertain and decide the suit seeking relief of cancellation of a void document. In Ram Padarath v. Second ADJ 1989 RD 21 (All) (FB), a Full Bench of the Allahabad High Court considered this aspect of the matter and held thus: We are of the view that the case of Indra Dev v. Ram Piari (1982) 8 ALR 517, has been correctly decided and the said decision requires no consideration, while the Division Bench case, Ayodhya Prasad (Dr.) v. Gangotri Prasad 1981 AWC 469 is regarding the jurisdiction of consolidation authorities, but so far as it holds that suit in respect of void document will lie in the Revenue Court it does not lay down a good law. Suit or action for cancellation of void document will generally lie in the civil court and a party cannot be deprived of his right getting this relief permissible under law except when a declaration of right or status and a tenure-holder is necessarily needed in which event relief for cancellation will be surplus age and redundant. A recorded tenure-holder having prima facie title in his favour can hardly be directed to approach the Revenue Court in respect of seeking relief for cancellation of a void document which made him approach the court of law and in such case he can also claim ancillary relife even though the same can be granted by the Revenue Court. 5. The correctness of the decision in the above case has not been challenged before us..... 7. On analysis of the decisions cited above, we are of the opinion that where a recorded tenure-holder having a prima facie title and in possession files suit in the civil court for cancellation of sale deed having been obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the Revenue Court, the reason being that in such a case, prima facie, the title of the recorded tenure-holder is not under cloud. He does not require declaration of his title to the land...... 12. In this case too, the title of the respondents/plaintiffs was not in question. The appellants raised alternative defenses of title pursuant to unregistered sale document and also of adverse possession. It was not the case of the appellants that they were tenants. The Civil Court rightly found that an unregistered sale deed could not confer title. The plea of adverse possession is a plea in desperation, since the plea of title pursuant to a sale document defeats the plea of adverse possession. | 0[ds]5. We have considered the submissions of the learned counsel appearing for the appellants and perused the impugned judgment and materials on record.6. The appellants/defendants are claiming title over the suit property by unregistered document dated 11.03.1976. As concurrently held by the Courts below, the unregistered document does not confer any right upon the respondents. We also do not find any good ground to interfere with the concurrent findings of the Courts below regarding the rejection of plea of adverse possession raised by the appellants. Learned counsel appearing for the appellants mainly raised the contention that the Courts below have not adverted to the plea raised by the appellants that the Civil Court has no jurisdiction to hear the suit and the suit is barred by Section 331 of the U.P. Zamindari Abolition Act. In the Trial Court, Issue No. 7 was framed on the plea regarding the bar of jurisdiction of Civil Court under Section 331 of the U.P. Zamindari Abolition Act. Sofar as Issue No. 7 is concerned, the Trial Court in its judgment pointed out that the issue relating to jurisdiction of the Court and the suit being barred by the provisions of Section 331 of the U.P. Zamindari Abolition Act has been decided in favour of the respondents/plaintiffs in the preliminary issue by order dated 13.02.1998.8. Since the issue relating to the jurisdiction of the Court and the suit being barred by the provisions of Section 331 of the U.P. Zamindari Abolition Act has been decided in favour of the respondents and in the light of the above findings recorded by the High Court, in our view, the judgment of the Courts below do not suffer from any infirmity warranting interference.9. In Chheda Singh vs. Town Area Committee, Akbarpur and Another reported in (1991) 1 SCC 266, this Court held that the jurisdiction of the Civil Court is only ousted by virtue of Section 331 of the UP Zamindari Abolition and Land Reforms Act, 1950. The ouster of Civil Courts jurisdiction under the said Act would only arise if the defendant was tenant under the said Act or in other words, there existed such basic fact, before the coming in force of the said Act, to qualify him to be tenant. In this case, the appellants have claimed possession by purchase and in the alternative adverse possession. The Courts below rightly found that the suit was not barred and the Civil Court had jurisdiction to entertain the same.10. In Kali Prasad and Others vs. Deputy Director of Consolidation and Others reported in (2000) 6 SCC 640 , this Court reiterated that Section 331 read with Schedule II bars the jurisdiction of the Civil Court only in respect of such reliefs which are mentioned in Schedule II and for adjudication of which, a specific authority has been prescribed here under. In the aforesaid case, this Court held that Section 209, which contemplates filing a suit for adjustment of a person occupying land without title, does not postulate eviction of asamis. If Section 209 is not applicable, the consequential provisions contained in Section 210 would also not be attracted.11. In Shri Ram and Another vs. 1st Addl. Distt. Judge and Others reported in (2001) 3 SCC 24 , this Court held that:4........the question that now arises for consideration is whether a recorded tenure-holder having prima facie title in his favour and in possession is required to file a suit in the Revenue Court or the civil court has jurisdiction to entertain and decide the suit seeking relief of cancellation of a void document. In Ram Padarath v. Second ADJ 1989 RD 21 (All) (FB), a Full Bench of the Allahabad High Court considered this aspect of the matter and held thus:We are of the view that the case of Indra Dev v. Ram Piari (1982) 8 ALR 517, has been correctly decided and the said decision requires no consideration, while the Division Bench case, Ayodhya Prasad (Dr.) v. Gangotri Prasad 1981 AWC 469 is regarding the jurisdiction of consolidation authorities, but so far as it holds that suit in respect of void document will lie in the Revenue Court it does not lay down a good law. Suit or action for cancellation of void document will generally lie in the civil court and a party cannot be deprived of his right getting this relief permissible under law except when a declaration of right or status and a tenure-holder is necessarily needed in which event relief for cancellation will be surplus age and redundant. A recorded tenure-holder having prima facie title in his favour can hardly be directed to approach the Revenue Court in respect of seeking relief for cancellation of a void document which made him approach the court of law and in such case he can also claim ancillary relife even though the same can be granted by the Revenue Court.5. The correctness of the decision in the above case has not been challenged before us.....7. On analysis of the decisions cited above, we are of the opinion that where a recorded tenure-holder having a prima facie title and in possession files suit in the civil court for cancellation of sale deed having been obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the Revenue Court, the reason being that in such a case, prima facie, the title of the recorded tenure-holder is not under cloud. He does not require declaration of his title to the land......12. In this case too, the title of the respondents/plaintiffs was not in question. The appellants raised alternative defenses of title pursuant to unregistered sale document and also of adverse possession. It was not the case of the appellants that they were tenants. The Civil Court rightly found that an unregistered sale deed could not confer title. The plea of adverse possession is a plea in desperation, since the plea of title pursuant to a sale document defeats the plea of adverse possession. | 0 | 1,644 | 1,093 | ### Instruction:
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the respondents/plaintiffs in the preliminary issue by order dated 13.02.1998. 7. While considering the question relating to the jurisdiction of the Court, the High Court in its judgment observed as under: An identical case, the Allahabad High Court in Ram Awalamb and others vs. Jata Shankar and others reported in AIR 1969 Allahabad P/526 has held that if the suit for perpetual injunction and mandatory injunction along with the ancillary relief of possession have been filed before the Civil Court, the Civil Court had the right to entertain the said suit under Section 9 of the Civil Procedure Code. Learned counsel for the defendants/appellants relied upon the judgment of the Apex Court in Deokinandan and others vs. Surajpal and others, 1996 Revenue Decisions P/70. In that case, the suit for the possession over the property governed by the U.P.Z.A & L.R. Act was filed for the possession of the said property. The Honble Apex Court held that the suit is maintainable in the Revenue Court. The above proposition is in consonance with Section 331 of the U.P.Z.A & L.R. Act. This case is not applicable in the case in hand. The plaintiff/respondents had sought the main relief of perpetual injunction as well as mandatory injunction in the suit in hand. 8. Since the issue relating to the jurisdiction of the Court and the suit being barred by the provisions of Section 331 of the U.P. Zamindari Abolition Act has been decided in favour of the respondents and in the light of the above findings recorded by the High Court, in our view, the judgment of the Courts below do not suffer from any infirmity warranting interference. 9. In Chheda Singh vs. Town Area Committee, Akbarpur and Another reported in (1991) 1 SCC 266, this Court held that the jurisdiction of the Civil Court is only ousted by virtue of Section 331 of the UP Zamindari Abolition and Land Reforms Act, 1950. The ouster of Civil Courts jurisdiction under the said Act would only arise if the defendant was tenant under the said Act or in other words, there existed such basic fact, before the coming in force of the said Act, to qualify him to be tenant. In this case, the appellants have claimed possession by purchase and in the alternative adverse possession. The Courts below rightly found that the suit was not barred and the Civil Court had jurisdiction to entertain the same. 10. In Kali Prasad and Others vs. Deputy Director of Consolidation and Others reported in (2000) 6 SCC 640 , this Court reiterated that Section 331 read with Schedule II bars the jurisdiction of the Civil Court only in respect of such reliefs which are mentioned in Schedule II and for adjudication of which, a specific authority has been prescribed here under. In the aforesaid case, this Court held that Section 209, which contemplates filing a suit for adjustment of a person occupying land without title, does not postulate eviction of asamis. If Section 209 is not applicable, the consequential provisions contained in Section 210 would also not be attracted. 11. In Shri Ram and Another vs. 1st Addl. Distt. Judge and Others reported in (2001) 3 SCC 24 , this Court held that: 4........the question that now arises for consideration is whether a recorded tenure-holder having prima facie title in his favour and in possession is required to file a suit in the Revenue Court or the civil court has jurisdiction to entertain and decide the suit seeking relief of cancellation of a void document. In Ram Padarath v. Second ADJ 1989 RD 21 (All) (FB), a Full Bench of the Allahabad High Court considered this aspect of the matter and held thus: We are of the view that the case of Indra Dev v. Ram Piari (1982) 8 ALR 517, has been correctly decided and the said decision requires no consideration, while the Division Bench case, Ayodhya Prasad (Dr.) v. Gangotri Prasad 1981 AWC 469 is regarding the jurisdiction of consolidation authorities, but so far as it holds that suit in respect of void document will lie in the Revenue Court it does not lay down a good law. Suit or action for cancellation of void document will generally lie in the civil court and a party cannot be deprived of his right getting this relief permissible under law except when a declaration of right or status and a tenure-holder is necessarily needed in which event relief for cancellation will be surplus age and redundant. A recorded tenure-holder having prima facie title in his favour can hardly be directed to approach the Revenue Court in respect of seeking relief for cancellation of a void document which made him approach the court of law and in such case he can also claim ancillary relife even though the same can be granted by the Revenue Court. 5. The correctness of the decision in the above case has not been challenged before us..... 7. On analysis of the decisions cited above, we are of the opinion that where a recorded tenure-holder having a prima facie title and in possession files suit in the civil court for cancellation of sale deed having been obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the Revenue Court, the reason being that in such a case, prima facie, the title of the recorded tenure-holder is not under cloud. He does not require declaration of his title to the land...... 12. In this case too, the title of the respondents/plaintiffs was not in question. The appellants raised alternative defenses of title pursuant to unregistered sale document and also of adverse possession. It was not the case of the appellants that they were tenants. The Civil Court rightly found that an unregistered sale deed could not confer title. The plea of adverse possession is a plea in desperation, since the plea of title pursuant to a sale document defeats the plea of adverse possession.
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considered the submissions of the learned counsel appearing for the appellants and perused the impugned judgment and materials on record.6. The appellants/defendants are claiming title over the suit property by unregistered document dated 11.03.1976. As concurrently held by the Courts below, the unregistered document does not confer any right upon the respondents. We also do not find any good ground to interfere with the concurrent findings of the Courts below regarding the rejection of plea of adverse possession raised by the appellants. Learned counsel appearing for the appellants mainly raised the contention that the Courts below have not adverted to the plea raised by the appellants that the Civil Court has no jurisdiction to hear the suit and the suit is barred by Section 331 of the U.P. Zamindari Abolition Act. In the Trial Court, Issue No. 7 was framed on the plea regarding the bar of jurisdiction of Civil Court under Section 331 of the U.P. Zamindari Abolition Act. Sofar as Issue No. 7 is concerned, the Trial Court in its judgment pointed out that the issue relating to jurisdiction of the Court and the suit being barred by the provisions of Section 331 of the U.P. Zamindari Abolition Act has been decided in favour of the respondents/plaintiffs in the preliminary issue by order dated 13.02.1998.8. Since the issue relating to the jurisdiction of the Court and the suit being barred by the provisions of Section 331 of the U.P. Zamindari Abolition Act has been decided in favour of the respondents and in the light of the above findings recorded by the High Court, in our view, the judgment of the Courts below do not suffer from any infirmity warranting interference.9. In Chheda Singh vs. Town Area Committee, Akbarpur and Another reported in (1991) 1 SCC 266, this Court held that the jurisdiction of the Civil Court is only ousted by virtue of Section 331 of the UP Zamindari Abolition and Land Reforms Act, 1950. The ouster of Civil Courts jurisdiction under the said Act would only arise if the defendant was tenant under the said Act or in other words, there existed such basic fact, before the coming in force of the said Act, to qualify him to be tenant. In this case, the appellants have claimed possession by purchase and in the alternative adverse possession. The Courts below rightly found that the suit was not barred and the Civil Court had jurisdiction to entertain the same.10. In Kali Prasad and Others vs. Deputy Director of Consolidation and Others reported in (2000) 6 SCC 640 , this Court reiterated that Section 331 read with Schedule II bars the jurisdiction of the Civil Court only in respect of such reliefs which are mentioned in Schedule II and for adjudication of which, a specific authority has been prescribed here under. In the aforesaid case, this Court held that Section 209, which contemplates filing a suit for adjustment of a person occupying land without title, does not postulate eviction of asamis. If Section 209 is not applicable, the consequential provisions contained in Section 210 would also not be attracted.11. In Shri Ram and Another vs. 1st Addl. Distt. Judge and Others reported in (2001) 3 SCC 24 , this Court held that:4........the question that now arises for consideration is whether a recorded tenure-holder having prima facie title in his favour and in possession is required to file a suit in the Revenue Court or the civil court has jurisdiction to entertain and decide the suit seeking relief of cancellation of a void document. In Ram Padarath v. Second ADJ 1989 RD 21 (All) (FB), a Full Bench of the Allahabad High Court considered this aspect of the matter and held thus:We are of the view that the case of Indra Dev v. Ram Piari (1982) 8 ALR 517, has been correctly decided and the said decision requires no consideration, while the Division Bench case, Ayodhya Prasad (Dr.) v. Gangotri Prasad 1981 AWC 469 is regarding the jurisdiction of consolidation authorities, but so far as it holds that suit in respect of void document will lie in the Revenue Court it does not lay down a good law. Suit or action for cancellation of void document will generally lie in the civil court and a party cannot be deprived of his right getting this relief permissible under law except when a declaration of right or status and a tenure-holder is necessarily needed in which event relief for cancellation will be surplus age and redundant. A recorded tenure-holder having prima facie title in his favour can hardly be directed to approach the Revenue Court in respect of seeking relief for cancellation of a void document which made him approach the court of law and in such case he can also claim ancillary relife even though the same can be granted by the Revenue Court.5. The correctness of the decision in the above case has not been challenged before us.....7. On analysis of the decisions cited above, we are of the opinion that where a recorded tenure-holder having a prima facie title and in possession files suit in the civil court for cancellation of sale deed having been obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the Revenue Court, the reason being that in such a case, prima facie, the title of the recorded tenure-holder is not under cloud. He does not require declaration of his title to the land......12. In this case too, the title of the respondents/plaintiffs was not in question. The appellants raised alternative defenses of title pursuant to unregistered sale document and also of adverse possession. It was not the case of the appellants that they were tenants. The Civil Court rightly found that an unregistered sale deed could not confer title. The plea of adverse possession is a plea in desperation, since the plea of title pursuant to a sale document defeats the plea of adverse possession.
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P. Lal Vs. Union Of India | of request for voluntary retirement can only be within the notice period. He submitted that the notice period was only for 3 months. He submitted that the effective date within which the request for voluntary retirement could be withdrawn was only 3 months. He submitted that in any event by Order dated 2nd March, 1995, the Government of India had accepted the request of Respondent No. 3 and permitted him to retire from service. He submitted that on such acceptance the relationship of master and servant came to an end. He submitted that thereafter Respondent No. 3 could not be permitted to withdraw his request for voluntary retirement. He submitted that the case that Respondent No. 3 had been sent abroad and/or asked to work for a foreign firm cannot be believed.27. We have considered the submissions of both the parties. As has been set out, in Shambhu Muraris case and Bank of Indias case, an employee can withdraw his application for voluntary retirement before the effective date. The effective date would necessarily be the date on which the retirement takes effect. The request, which Respondent No. 3 had made by his letter dated 5th May, 1993, was to be allowed to retire voluntarily with immediate effect. He had also deposited Rs. 30,870/- in lieu of three months notice. Thus so far as Respondent No.3 was concerned the effective date was 5th May, 1993. Of course Rule 16(2A) of the All India Services (Death-cum-Retirement) Rules, 1958 provides that a notice of retirement had to be accepted by the Government of India. In this case, the Government of India accepted the request on 2nd March, 1995 and permitted Respondent No. 3 to retire with effect from May 1993. The moment Government of India accepted the notice the retirement became effective. The relationship of master and servant came to an end. We are unable to accept the submission that the relationship of master and servant did not terminate till the acceptance was communicated to Respondent No. 3. It must be remembered that Rules 16(2) and 16(2A) enable a member to retire from service on giving the required notice. Once such a notice is given it merely has to be accepted by the Government of India. The moment it is accepted the retirement would become effective. If any other view is taken it would lead to absurd results. Such a view would mean that even though a member had given a notice for voluntary retirement stopped attending office and/or gone away abroad and/or taken up some other employment after a number of years of absence the member could claim to come back into service because the Government, for some unforeseen reasons, had not communicated its acceptance. Taken to its absurd length such a member could after superannuation claim that, as the services were not terminate, he was entitled to pension and gratuity on the basis that he had continued in service. The requirement of communication of acceptance would only arise in cases where, even after giving of a notice of voluntary retirement the member continues to work/perform his duties. In such cases the member would need to know from what date he can stop attending office. In cases where the member has by his own conduct abandoned service the severance of the relationship of master and servant takes place immediately on acceptance of notice. We are unable to accept the submission that the severance of relationship of master and servant cannot take effect until there is an Order by the President of India and the same is duly notified in the Gazette. Rules 16(2) and 16(2A) have been set out hereinabove. All that it requires is acceptance by the Government of India and not by the President of India. Admittedly the request for voluntary retirement has been accepted by the Government of India on 2nd March, 1995. No provision or rule could be shown which requires such acceptance to be gazetted. On the contrary, as has been set out hereinabove, in its affidavit before the Punjab and Haryana High Court, the Government of Punjab had categorically stated that there was no provision for gazetting such an order. 28. That the relationship of master and servant had been severed is clear from the affidavit filed by the Respondent No.3 in this Court. The relevant portion has been reproduced hereinabove. Even according to Respondent No.3 no posting order had been issued to him. According to Respondent No.3 the Government of India had struck off, his name from the Gradation list, no salary was paid to him and 8 letters have been issued declaring that he has retired from service. 29. We are unable to accept Mr. Jethmalanis submission that, Respondent No.3 had been sent abroad and asked to take up employment with a foreign firm by the Government. There is no proof of such a case. Neither the Government of India nor the Governments of Punjab/Haryana state that this was so. This appears to us to be an argument in desperation. 30. In view of the above it is held that the High Court erred in coming to the conclusion that the relationship of master and servant had not been terminated. As has been set out hereinabove, the relationship of master and servant had been terminated before Respondent No.3 sought to withdraw his request for voluntary retirement on 18th April, 1995. Once relationship of master and servant had been severed and/ or terminated, by this back door method, Respondent No.3 could not get back to service. The Order of the Government of India dated 14th August, 1997 cannot be sustained and was correctly quashed by the Central Administrative Tribunal. In this view of the matter the impugned judgment requires to be and is hereby set aside. The Order of the Central Administrative Tribunal dated 3rd February, 1998 is restored.31. Mr. Gupta had raised various other submissions. In the view that we have taken it is not necessary to set out or deal with those submissions. | 1[ds]It is held that theHigh Court erred in coming to the conclusion that the relationship of master and servant had not been terminated. As has been set out hereinabove, the relationship of master and servant had been terminated before Respondent No.3 sought to withdraw his request for voluntary retirement on 18th April, 1995. Once relationship of master and servant had been severed and/ or terminated, by this back door method, Respondent No.3 could not get back to service. The Order of the Government of India dated 14th August, 1997 cannot be sustained and was correctly quashed by the Central Administrative Tribunal. In this view of the matter the impugned judgment requires to be and is hereby set aside. The Order of the Central Administrative Tribunal dated 3rd February, 1998 is restored. | 1 | 7,286 | 148 | ### Instruction:
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of request for voluntary retirement can only be within the notice period. He submitted that the notice period was only for 3 months. He submitted that the effective date within which the request for voluntary retirement could be withdrawn was only 3 months. He submitted that in any event by Order dated 2nd March, 1995, the Government of India had accepted the request of Respondent No. 3 and permitted him to retire from service. He submitted that on such acceptance the relationship of master and servant came to an end. He submitted that thereafter Respondent No. 3 could not be permitted to withdraw his request for voluntary retirement. He submitted that the case that Respondent No. 3 had been sent abroad and/or asked to work for a foreign firm cannot be believed.27. We have considered the submissions of both the parties. As has been set out, in Shambhu Muraris case and Bank of Indias case, an employee can withdraw his application for voluntary retirement before the effective date. The effective date would necessarily be the date on which the retirement takes effect. The request, which Respondent No. 3 had made by his letter dated 5th May, 1993, was to be allowed to retire voluntarily with immediate effect. He had also deposited Rs. 30,870/- in lieu of three months notice. Thus so far as Respondent No.3 was concerned the effective date was 5th May, 1993. Of course Rule 16(2A) of the All India Services (Death-cum-Retirement) Rules, 1958 provides that a notice of retirement had to be accepted by the Government of India. In this case, the Government of India accepted the request on 2nd March, 1995 and permitted Respondent No. 3 to retire with effect from May 1993. The moment Government of India accepted the notice the retirement became effective. The relationship of master and servant came to an end. We are unable to accept the submission that the relationship of master and servant did not terminate till the acceptance was communicated to Respondent No. 3. It must be remembered that Rules 16(2) and 16(2A) enable a member to retire from service on giving the required notice. Once such a notice is given it merely has to be accepted by the Government of India. The moment it is accepted the retirement would become effective. If any other view is taken it would lead to absurd results. Such a view would mean that even though a member had given a notice for voluntary retirement stopped attending office and/or gone away abroad and/or taken up some other employment after a number of years of absence the member could claim to come back into service because the Government, for some unforeseen reasons, had not communicated its acceptance. Taken to its absurd length such a member could after superannuation claim that, as the services were not terminate, he was entitled to pension and gratuity on the basis that he had continued in service. The requirement of communication of acceptance would only arise in cases where, even after giving of a notice of voluntary retirement the member continues to work/perform his duties. In such cases the member would need to know from what date he can stop attending office. In cases where the member has by his own conduct abandoned service the severance of the relationship of master and servant takes place immediately on acceptance of notice. We are unable to accept the submission that the severance of relationship of master and servant cannot take effect until there is an Order by the President of India and the same is duly notified in the Gazette. Rules 16(2) and 16(2A) have been set out hereinabove. All that it requires is acceptance by the Government of India and not by the President of India. Admittedly the request for voluntary retirement has been accepted by the Government of India on 2nd March, 1995. No provision or rule could be shown which requires such acceptance to be gazetted. On the contrary, as has been set out hereinabove, in its affidavit before the Punjab and Haryana High Court, the Government of Punjab had categorically stated that there was no provision for gazetting such an order. 28. That the relationship of master and servant had been severed is clear from the affidavit filed by the Respondent No.3 in this Court. The relevant portion has been reproduced hereinabove. Even according to Respondent No.3 no posting order had been issued to him. According to Respondent No.3 the Government of India had struck off, his name from the Gradation list, no salary was paid to him and 8 letters have been issued declaring that he has retired from service. 29. We are unable to accept Mr. Jethmalanis submission that, Respondent No.3 had been sent abroad and asked to take up employment with a foreign firm by the Government. There is no proof of such a case. Neither the Government of India nor the Governments of Punjab/Haryana state that this was so. This appears to us to be an argument in desperation. 30. In view of the above it is held that the High Court erred in coming to the conclusion that the relationship of master and servant had not been terminated. As has been set out hereinabove, the relationship of master and servant had been terminated before Respondent No.3 sought to withdraw his request for voluntary retirement on 18th April, 1995. Once relationship of master and servant had been severed and/ or terminated, by this back door method, Respondent No.3 could not get back to service. The Order of the Government of India dated 14th August, 1997 cannot be sustained and was correctly quashed by the Central Administrative Tribunal. In this view of the matter the impugned judgment requires to be and is hereby set aside. The Order of the Central Administrative Tribunal dated 3rd February, 1998 is restored.31. Mr. Gupta had raised various other submissions. In the view that we have taken it is not necessary to set out or deal with those submissions.
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It is held that theHigh Court erred in coming to the conclusion that the relationship of master and servant had not been terminated. As has been set out hereinabove, the relationship of master and servant had been terminated before Respondent No.3 sought to withdraw his request for voluntary retirement on 18th April, 1995. Once relationship of master and servant had been severed and/ or terminated, by this back door method, Respondent No.3 could not get back to service. The Order of the Government of India dated 14th August, 1997 cannot be sustained and was correctly quashed by the Central Administrative Tribunal. In this view of the matter the impugned judgment requires to be and is hereby set aside. The Order of the Central Administrative Tribunal dated 3rd February, 1998 is restored.
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Yakub Abdul Razak Memon & Others Vs. State Of Maharashtra Through CBI, Mumbai | seized from A-3 on 25.08.1994: (i) Pakistani passport bearing No. AA-763650 dated 12.04.1993 in the name of Akhtar Ahmed Mohd. bearing the photograph of A-3; and (ii) Temporary residential permit issued for Pakistani nationals duly stamped at New Delhi Airport on 25.08.1994 in the name of Akhtar Ahmed Mohd. 23) Exhibit No. 2505 is the seizure memo prepared by PW-674 at the time of arrest of Rubina Suleman Memon (A-8). The following items were seized from A-8 on 25.08.1994: (i) Pakistani passport bearing No. AC 001087 dated 27.04.1994 in the name of Mrs. Mehtab bearing the photograph of A-8; (ii) Pakistani photo identity card bearing No. BQ 526267/509-69-270214 in the name of Mrs. Mehtab dated 29.03.1994 bearing the photo of A-8; and (iii) Temporary residential permit issued for Pakistani nationals duly stamped at New Delhi Airport on 25.08.1994 in the name of Mrs. Mehtab Aftab. 24) It is, therefore, clear that the recovery of Pakistani identity cards and Pakistani passports from the appellants at the time of their arrest at New Delhi Airport clearly prove that the appellants had relocated to Dubai from Bombay just prior to the blasts on 12.03.1993 and, thereafter, to Pakistan. 25) The prosecution also brought to our notice that the conduct of the appellants after the blasts further establishes that the appellants did not intend to co-operate with the investigation authorities in India and instead travelled on a holiday to Bangkok from Karachi which is evident from the passport entries made in Pakistani passports recovered from Yakub Abdul Razak Memon (A-1) at the time of his arrest at New Delhi Railway Station. After travelling to Bangkok, the appellants arrived at New Delhi Airport via Dubai where they were arrested on 25.08.1994 by PW-674. 26) Pakistani passport No. AA-763650 in respect of Akhtar Ahmed Mohd. (A- 3) shows that the said passport holder left Karachi on 16.04.1993 and reached Bangkok on the same day itself. The said passport holder left Bangkok on 27.04.1993. There is no arrival stamp of any country on the said passport. The said passport holder again left Karachi on 17.06.1994 and reached Dubai on the same day. Again, the said passport holder left Dubai on 25.08.1994 and reached India on the same day itself (Exhibit No. 1553). It is clear from the photo on the passport that Akhtar Ahmed Mohd. and Essa @ Anjum Razak Memon (A-3) are one and the same persons. 27) Exhibit No. 1551 is the Pakistani passport No. AA-763654 in respect of Imran Ahmed Mohammed (A-4) which reveals that the said passport holder left Karachi on 17.04.1993 and reached Bangkok on the same day. The said passport holder left Bangkok on 29.04.1993. There is no arrival stamp of any country on the said passport. Again, the said passport holder left Karachi on 20.06.1994 and entered Dubai on the same day. The said passport holder left Dubai on 28.06.1994. There is no arrival stamp of any country on the passport. Again, the said passport holder left Karachi on 25.07.1994 and reached Dubai. The said person left Dubai on 10.08.1994 and re-entered Dubai on 11.08.1994. Again, the said passport holder left Dubai on 25.08.1994 and arrived at New Delhi on the same day. From the Indian Passport of Yusuf Abdul Razak Memon and Pakistani passport in respect of Imran Ahmed Mohd., it is clear that Imran Ahmed Mohd. and Yusuf Abdul Razak Memon are one and the same persons. 28) Exhibit No. 1562 is the Pakistani Passport No. AA-763653 in respect of Mrs. Mehtab Aftab Ahmed (A-8) which shows that Mrs. Mehtab Aftab Ahmed left Karachi on 16.04.1993 and reached Bangkok on the same day. Again, she left Bangkok on 27.04.1993. There is no arrival stamp of any country on the said passport. Pakistani Passport No. AC-001087 in respect of Mrs. Mehtab Aftab Ahmed shows that she left Karachi on 25.07.1994 and entered Dubai on the same day. She left Dubai on 10.08.1994 and entered Dubai on 11.08.1994. Again, she left Dubai on 25.08.1994 and entered India on the same day i.e., 25.08.1994. The said passports show that Rubina Suleman Memon (A-8) and Mrs. Mehtab Aftab Ahmed are one and the same persons. Other evidence against the Appellants Deposition of Rashid Fakir Mohd. Khatri (PW-417) 29) PW-417 was an Accounts Assistant at Memon Mehta Associates, a firm of Chartered Accountants in which Yakub Abdul Razak Memon (A-1) was a partner. He deposed that Essa @ Anjum (A-3) is the brother of A-1 and was looking after the business of M/s Tejarath International in Bombay in 1993. It is pertinent to note here that A-1 was charged and convicted at head secondly for arranging finance from the funds of M/s Tejarath International for achieving the objective to commit terrorist acts. The evidence on record establishes the involvement of Tejarath International in financing the air tickets of several co-accused persons. Deposition of Lakharaju Narsinhasai Rao (PW-672) PW-672 was a police officer. In his deposition dated 20.6.2000, he deposed that he recovered the details of bank accounts of Rubina Suleman Memon (A-8) from the HSBC Bank, Bandra Branch and that of Essa @ Anjum Abdul Razak Memon (A-3) from the Development Co-operative Bank, Mahim Branch. It is pertinent to note here that M/s Tejarath International was also having an account with the Development Co-op. Bank, Mahim. As already discussed above, evidence of PW-417 clearly establishes that A-3 was involved with the management of M/s Tejarath International, a firm whose funds were involved in financing the conspiratorial activities such as booking of air tickets. Appeal by the State of Maharashtra through CBI: Criminal Appeal No. 419 of 2011 The above-said appeal has been filed by the State against acquittal of A-2, A-6, A-7 and A-8 of the charges framed against them. Except A-8, the CBI has not pressed the same against A-2, A-6 and A-7 before this Court, who was acquitted of (i) a part of charge stated in clause (a) at head secondly framed against her and (ii) charge stated in clause (b). | 0[ds]6) The involvement of the appellants has been disclosed in the confessional statements of the co-accused. The legality and acceptability of the confessions of the co-accused has already been considered by us in the earlier part of our discussion. The said confessions, insofar as they refer to the appellants (A-3, A-4 and A-8), are summarized hereinbelow: Confessional Statement of Abdul Gani Ismail Turk (A-11)Confessional statement of A-11 under section 15 of TADA has been recorded on 15.04.1993 (22:35 hrs.) and 18.04.1993 (01:15 hrs.) by Shri Prem Krishan Jain, the then DCP, Zone X, Bombay. His confession reveals that on the night of 7th March, 1993, when A-11 went to the house of Tiger Memon at Al-Hussaini building, he (Tiger) was having dinner with Yakub Abdul Razak Memon (A-1),Essa @ Anjum Abdul Razak Memon (A-3)and other members of the Memons familyConfessional Statement of Mohd. Rafiq @ Rafiq Madi Musa Biyariwala (A-46)Confessional statement of A-46 under section 15 of TADA has been recorded on 21.04.1993 (19:00 hrs.) and 22.04.1993 (21:25 hrs.) by Shri Krishan Lal Bishnoi, the then DCP, Zone III, Bombay. The confessional statement of A-46, driver of Tiger Memon, reveals that A-3 used to drive one white Maruti 800 car owned by Tiger MemonConfessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)Confessional statement of A-64 under section 15 of TADA has been recorded on 22.01.1995 (21:15 hrs.) and 24.01.1995 (09:15 hrs.) by Shri H C Singh, Suptd. of Police, CBI/SPE/STF, New Delhi. His confession reveals that Tiger Memon and his family members used to reside together at Al- Hussaini building. A-64, in his confession, also stated that Tiger Memon fled away from India with his family before the blasts on 12.03.1993 and that shortly after the blasts, police came to Al-Hussaini building in search of Tiger and his family members7) Apart from the aforesaid evidence, the involvement and the role of the appellants in the conspiracy, as stated above, is disclosed by the deposition of various prosecution witnesses which are as follows:Al-HussainiBuilding:- Place of residence for Memons family: Deposition of Dinkar D. Jadhav (PW-312)At the relevant time, PW-312 was working as a Ward Officer in Bombay Municipal Corporation The relevant material in his evidence is as follows:(i) In the Court, PW-312 identified the Report prepared by him (Exhibit 1190) establishing the ownership of A-8 over Flat No. 25 in Al- Hussaini building at Mahim(ii) PW-312 also described about the said Report (Exhibit 1190) which was prepared by him after scrutinizing the property records establishing A- 8 as the owner of the abovementioned flat at Al-Hussaini building. Deposition of Wahid Karim Shaikh (PW-87)The following facts emerge from the deposition of PW-87 dated 04.08.1996:(i) PW-87, who repairs cycles for a living, was formerly a driver of Razak Memon(ii) Memons including A-3, A-4 and daughter-in-law of Razak Memon used to reside at Al-Hussaini building. PW-87 stated as under:3. Razak Memon was residing at the said place along with his family members. The said members of his family were his wife, his daughter-in-law and his sons, namely:Anjumbhai (A-3), Yusufbhai (A-4), Yakubbhai (A-1) and Ayubbhai (AA)Essa @ Anjum Abdul Razak Memon (A-3)was having a small white colored Maruti car, a small blue Maruti Car, a red coloured Maruti 1000 and a red coloured Maruti van12) The investigation into the role of the appellants can be said to have begun with the recovery of Maruti Van bearing number MFC 1972 near the gate of Siemens factory at Worli. This car was abandoned by the conspirators, viz., PW-2, A-57, Javed Chikna, Bashir Khan and Babloo when they were on their way to the Bombay Municipal Corporation Office on 12.03.1993. The statement of PW 2 reveals that while they were on their way, they spotted a live detonator in the Van which exploded as soon as it was thrown outside the Van. This explosion scared the conspirators and they abandoned the Van near the gate of Siemens factory at Worli. This Van was then spotted by the Security Guards of the factory and was reported to the police and several items were recovered from the Van including its registration documents. This ultimately led the police to the flat of Rubina Suleman Memon (A-8), owner of the said Van, at Al-Hussaini buildingExhibit Nos. 1292 and 1292-A are the true copies of the Register maintained by RTO in respect of Maruti vehicle bearing number MFC 1972. The said Exhibits clearly show that Rubina Suleman Memon (A-8), resident of Al- Hussaini building, is the owner of the said Maruti car. Deposition of Waman Ramchandra Kulkarni (PW-662)PW-662, in his deposition dated 03.05.2000, reveals that he wrote a letter to the RTO dated 23.07.1993 (Exhibit 2433) seeking information in respect of the ownership of several vehicles including vehicle number MFC 1972, which was abandoned by accused persons and was seized by the police on 12.03.1993 outside the Siemens Factory14) The recoveries made from the Maruti Van bearing No. MFC 1972 were forwarded to the Chemical Analyser vide forwarding letter Exhibit 2439 who confirmed in his report (Exhibit 2439-A) the presence of hand grenades amongst the recovered items. Similarly, his report dated 21.04.1993, Exhibit No. 2440-A also confirmed one Chinese Type 56-1 assault rifle and cartridges which were recovered from the said Maruti Van on 12.03.1993. Further, FSL Report (Exhibit No. 2440-C) clearly reveals that the name WAH NOBLE (PVT.) LTD. WAH CANTT. was inscribed on the cardboard boxes recovered at Al-Hussaini. Francis Xavier Xaxa (PW-435), an Indian national, working with the Ministry of External Affairs and attached with the Indian Consulate at Islamabad until 1995, has stated that a company by name Wah Noble (Pvt.) Limited is listed as a manufacturer of explosives in the directory compiled by the Rawalpindi Chamber of Commerce and Industry with its office at Wah Cantt., Pakistan. It is, therefore, clear that the accused persons were carrying hand grenades, cartridges and assault rifles in the Maruti van owned by Rubina Suleman Memon (A-8) on 12.03.1993.We are in agreement with the said conclusionRecoveries from Al-Hussaini building after the blasts16) The abandoned Maruti car bearing number MFC 1972 which was recovered from outside the gate of Siemens factory at Worli on 12.03.1993 led the police to the flat of Rubina Suleman Memon (A-8) at Al-Hussaini building since the car belonged to her. The Police officials also inspected Flat Nos. 26 and 22 at Al-Hussaini building and recovered several articles including Rs. 4 lacs in cash, jewellery, slippers, carpet pieces with traces of RDX and keys to the abandoned scooter containing explosives found at Naigaon cross road vide panchnama Exhibit No. 337 in the presence of panch witnesses, viz., Uday Narayan Vasaikar (PW-67) and Sambaji Damodar SawantThe evidence of PW-67, therefore, corroborates with the evidence of Police Officer Pharande and the spot panchnama Exhibit No. 337 in material terms and, specifically, insofar as recording of recoveries made is concerned. Deposition of Homi Sorabji Irani (PW-553)PW-553 was in-charge of the investigation regarding the scooter recovered at Naigaon cross road containing explosives. On 03.07.1993, PW- 553 handed over the keys of the scooter recovered from Al-Hussaini building to PW-546 for verificationPW-546, a police officer, verified on 03.07.1993 that the keys recovered from Flat No. 22 at Al-Hussaini building could be applied to the abandoned scooter seized by the police bearing number MH-04-Z-261 from Naigaon cross road containing explosives and prepared a panchnama being Exhibit No. 363 recording the same. Shaikh Sharfu (PW-69) was the scooter mechanic who applied the keys to the scooter in the presence of panch witness Mohd. Hussain Noor (PW-68)Deposition of Nitin Narayan Mehar (PW-47)18) PW-47 was the panch witness to the recoveries made from the garage allotted to Flat No. 26 of the said building on 13.03.1993 and recorded the recovery of a safe marked as Article 113 in the spot panchnama marked as Exhibit No. 192 On 15.03.1993, the safe was opened and watches worth Rs. 2,00,000/-, jewellery and ornaments worth Rs. 41,00,000/- and cash were recovered and the recoveries were recorded in a panchnama marked as Exhibit No. 193Deposition of Ganesh Shankar Rao (PW-48)PW-48 was a jeweller by profession and was called to Mahim police station on 15.03.1993 to examine the jewellery and the ornaments recovered from the safe (Article 113) found in the garage of Flat No. 26 of Al-Hussaini building on 13.03.1993. Duttanad Ramkrishna Ravankar (PW-49), a goldsmith by profession, was also called to the Mahim police station on 15.03.1993 to examine the gold ornaments and the jewellery found in the steel safe recovered from the garage at Al-Hussaini building. Khalid Salam Arab (PW- 40) was the key maker who made the keys to open the steel safe at Mahim police station on 15.03.1993. It is, therefore, clear that the evidence of PWs-48, 49 and 50 corroborates with the evidence recorded in panchnama Exhibit No. 193 insofar as opening of the steel safe and recovery of valuables therein is concernedPW-52 was a resident of Al-Hussaini building in March 1993 and agreed to act as a panch witness in respect of the items recovered from the compound of the said building on 21.03.1993. He deposed as under:- (i) The recovered items included 31 gunny sack pieces, 25 folded cardboard boxes having marking of Packric Packages Ltd. – Lahore Containers, 34 oil stained white clothes and some plastic bags. (ii) He further deposed that the recoveries were recorded in a panchnama marked as Exhibit No. 214The evidence of PW-52, therefore, corroborates with the evidence of PW-555 and the panchnama Exhibit No. 21419) The prosecution submitted that the recoveries made from the flats and garages of the Memons at Al-Hussaini building establish that the said building was the nucleus of the criminal conspiracy to carry out explosions in Bombay on 12.03.1993 and for several months, since December 1992, meetings were held to prepare plans and hold discussions and lastly to fill RDX in vehicles, which were eventually used as bombs. It is further clear that the Memons including A-3, A-4 and A-8, used to reside together in Flat Nos. 22, 25 and 26 at Al-Hussaini building and were present when several conspiratorial meetings took place in the said flats. It is, therefore, clear that A-3, A-4 and A-8 knew about the conspiracy and facilitated the commission of acts pursuant to the said conspiracy. Arrest of the Appellants(ii) PW-674, thereafter, arrested the family members who arrived at New Delhi Airport on 25.08.1974 at 1100 hrs. He arrested the family members including A-3, A-4 and A-821) Exhibit No. 2500 is the seizure memo prepared by PW-674 at the time of arrest of A-4. The following items were seized from A-4 on 25.08.1994: (i) Pakistani passport bearing No. AA 763654 dated 12.04.1993 issued in the name of Imran Ahmed Mohd. bearing the photograph of(ii) Pakistani photo identity card bearing No. AZ 021271510-91-224164 in the name of Imran Ahmed Mohd. bearing the photo of A-4; and (iii) Temporary residential permit issued for Pakistani nationals duly stamped at New Delhi Airport on 25.08.1994 in the name of Imran Ahmed Mohd22) Exhibit No. 2501 is the seizure memo prepared by PW-674 at the time of arrest of Essa Abdul Razak Memon (A-3). The following items were seized from A-3 on 25.08.1994:(i) Pakistani passport bearing No. AA-763650 dated 12.04.1993 in the name of Akhtar Ahmed Mohd. bearing the photograph of A-3; and(ii) Temporary residential permit issued for Pakistani nationals duly stamped at New Delhi Airport on 25.08.1994 in the name of Akhtar Ahmed Mohd23) Exhibit No. 2505 is the seizure memo prepared by PW-674 at the time of arrest of Rubina Suleman Memon (A-8). The following items were seized from A-8 on 25.08.1994:(i) Pakistani passport bearing No. AC 001087 dated 27.04.1994 in the name of Mrs. Mehtab bearing the photograph of A-8;(ii) Pakistani photo identity card bearing No. BQ 526267/509-69-270214 in the name of Mrs. Mehtab dated 29.03.1994 bearing the photo of A-8; and(iii) Temporary residential permit issued for Pakistani nationals duly stamped at New Delhi Airport on 25.08.1994 in the name of Mrs. Mehtab Aftab24) It is, therefore, clear that the recovery of Pakistani identity cards and Pakistani passports from the appellants at the time of their arrest at New Delhi Airport clearly prove that the appellants had relocated to Dubai from Bombay just prior to the blasts on 12.03.1993 and, thereafter, to Pakistan25) The prosecution also brought to our notice that the conduct of the appellants after the blasts further establishes that the appellants did not intend to co-operate with the investigation authorities in India and instead travelled on a holiday to Bangkok from Karachi which is evident from the passport entries made in Pakistani passports recovered from Yakub Abdul Razak Memon (A-1) at the time of his arrest at New Delhi Railway Station. After travelling to Bangkok, the appellants arrived at New Delhi Airport via Dubai where they were arrested on 25.08.1994 by PW-67426) Pakistani passport No. AA-763650 in respect of Akhtar Ahmed Mohd. (A- 3) shows that the said passport holder left Karachi on 16.04.1993 and reached Bangkok on the same day itself. The said passport holder left Bangkok on 27.04.1993. There is no arrival stamp of any country on the said passport. The said passport holder again left Karachi on 17.06.1994 and reached Dubai on the same day. Again, the said passport holder left Dubai on 25.08.1994 and reached India on the same day itself (Exhibit No. 1553). It is clear from the photo on the passport that Akhtar Ahmed Mohd. and Essa @ Anjum Razak Memon (A-3) are one and the same persons27) Exhibit No. 1551 is the Pakistani passport No. AA-763654 in respect of Imran Ahmed Mohammed (A-4) which reveals that the said passport holder left Karachi on 17.04.1993 and reached Bangkok on the same day. The said passport holder left Bangkok on 29.04.1993. There is no arrival stamp of any country on the said passport. Again, the said passport holder left Karachi on 20.06.1994 and entered Dubai on the same day. The said passport holder left Dubai on 28.06.1994. There is no arrival stamp of any country on the passport. Again, the said passport holder left Karachi on 25.07.1994 and reached Dubai. The said person left Dubai on 10.08.1994 and re-entered Dubai on 11.08.1994. Again, the said passport holder left Dubai on 25.08.1994 and arrived at New Delhi on the same day. From the Indian Passport of Yusuf Abdul Razak Memon and Pakistani passport in respect of Imran Ahmed Mohd., it is clear that Imran Ahmed Mohd. and Yusuf Abdul Razak Memon are one and the same persons28) Exhibit No. 1562 is the Pakistani Passport No. AA-763653 in respect of Mrs. Mehtab Aftab Ahmed (A-8) which shows that Mrs. Mehtab Aftab Ahmed left Karachi on 16.04.1993 and reached Bangkok on the same day. Again, she left Bangkok on 27.04.1993. There is no arrival stamp of any country on the said passport. Pakistani Passport No. AC-001087 in respect of Mrs. Mehtab Aftab Ahmed shows that she left Karachi on 25.07.1994 and entered Dubai on the same day. She left Dubai on 10.08.1994 and entered Dubai on 11.08.1994. Again, she left Dubai on 25.08.1994 and entered India on the same day i.e., 25.08.1994. The said passports show that Rubina Suleman Memon (A-8) and Mrs. Mehtab Aftab Ahmed are one and the same persons. Other evidence against the AppellantsDeposition of Rashid Fakir Mohd. Khatri (PW-417)29) PW-417 was an Accounts Assistant at Memon Mehta Associates, a firm of Chartered Accountants in which Yakub Abdul Razak Memon (A-1) was a partner. He deposed that Essa @ Anjum (A-3) is the brother of A-1 and was looking after the business of M/s Tejarath International in Bombay in 1993It is pertinent to note here that A-1 was charged and convicted at head secondly for arranging finance from the funds of M/s Tejarath International for achieving the objective to commit terrorist acts. The evidence on record establishes the involvement of Tejarath International in financing the air tickets of several co-accused personsIt is pertinent to note here that M/s Tejarath International was also having an account with the Development Co-op. Bank, Mahim. As already discussed above, evidence of PW-417 clearly establishes that A-3 was involved with the management of M/s Tejarath International, a firm whose funds were involved in financing the conspiratorial activities such as booking of air ticketsAfter careful examination of all the materials placed, we are of the view that in the absence of any positive evidence, A-8 cannot be convicted for the acts done and mentioned hereinabove (part of charge mentioned at head secondly) and the Designated Court has rightly acquitted her for the same. In the light of the above, the appeal of the State is liable to be dismissed31) The Designated Court has considered all the abovesaid factors in respect of the appellants. The evidence on record establishes that the A-8 was aware that the vehicle owned by her (i.e. MFC 1972) was being used for terrorist acts by Tiger Memon and his associates. It is further established that Flat Nos. 22, 25 and 26 at Al-Hussaini building, where members of the Memons family resided jointly, were the nucleus of the criminal conspiracy as they were the locations where Tiger Memon and Yakub Memon met with several other co-accused persons during the period of the conspiracy. Further, the arms and explosives smuggled into India for the purpose of the conspiracy were also kept at the said building and lastly RDX was filled in the vehicles in and outside the garages allocated to the Memons at Al- Hussaini building which were used/planted as bombs at various places on 12.03.1993 by all the conspirators32) Further, it is pertinent to note here that the evidence on record reveals that the Maruti car used by A-3 was:(a) driven by several co-accused persons including A-15, A-46 and A-11 to the landing point at Shekhadi from Bombay for landing of weapons in February, 1993;(b) loaded with RDX on the night of 11.03.1993 at Al-Hussaini Building; and(c) parked on 12.03.1993 at the Lucky Petrol Pump by A-16 and PW-2 near Shiv Sena Bhawan which exploded killing 4 persons and injuring 38 others. The above mentioned evidence establishes that the white car driven by A-3 was used for terrorist activities by Tiger Memon and other co-accused persons33) Further, A-3, A-4, and A-8 resided jointly at these flats where Tiger Memon, Yakub Memon (A-1) and their associates hatched the criminal conspiracy to carry out multiple explosions in Bombay. The conduct of the appellants in not reporting any of these activities to the police and the fact that A-3 and A-4 departed from India on 11.03.1993 in itself is an incriminating circumstance to be used against the appellants. None of the appellants responded to the proclamation requiring presence issued by the Designated Court, which was given wide publicity34) The evidence on record establishes that the appellants facilitated the commission of terrorist acts as defined in Section 3(1) of TADA by conniving with Tiger Memon and his associates and permitting them to use their flats and vehicles for the purposes of criminal conspiracy. The actions of the appellants squarely fall within Section 3(3) of TADA insofar as the appellants have facilitated and abetted the conduct of terrorist acts by Tiger Memon and his associates36) After the blasts, the Memons fled to Pakistan from Dubai and there is evidence that in Pakistan they had obtained Pakistani Passports and National Identity Cards in assumed names. The Memons and their family members were leading a comfortable and luxurious life after the blasts. They had acquired properties, started business in the name and style of M/s Home Land Builders, acquired fictitious qualification certificates, driving licences, etc, all of which established that they had chosen a comfortable life in Pakistan and were determined not to return to India in their original identity. The above-said facts clearly establish that the members of Memons family were connected with the Bombay Bomb Blasts37) All the members of Memons family were declared Proclaimed Offenders by the Designated Court, Bombay. The rewards were also declared in Indian as well as in foreign currency for their arrest. Despite that, they did not surrender. Instead, the Memons travelled to Bangkok and Singapore from Karachi for holiday in assumed names on Pakistani Passports during April, 1993. They have not taken any steps to surrender before Indian Authorities or Thailand Authorities on their arrival to Bangkok and Singapore after having come to know about the blasts engineered by Tiger Memon nor made any attempt to return to India openly if they had felt that bomb blasts are offences committed in India. This conduct clearly establishes that they were aware of the blasts that were engineered by Tiger Memon who was living with them right from the time of blasts, i.e., 12th March 1993, in Dubai, Pakistan and other places. Their documents for travel to Bangkok and Singapore from Karachi show that they have travelled on Pakistani Passports using fake names. This conduct also establishes their culpability. It is also in evidence that huge amount of jewellery and cash which was abandoned by the members of Memons family was recovered from the Al-Hussaini building when they hurriedly left Bombay just before the blasts. This is also a proof that all the Memons were fully aware of the blasts and their conduct in fleeing away very clearly establishes that they were aware of the blasts and association of Tiger Memon with the blasts38) In view of the materials placed on record by the prosecution and the ultimate analysis of the Designated Court, we fully agree with the conviction and sentence imposed upon the appellants, consequently, the appeals filed by the appellants are liable to be dismissed44) Confessional statement of A-11 under Section 15 of TADA has been recorded on 15.04.1993 and 18.04.1993 by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. The said confession reveals as under: (i) The appellant (A-54) was present in the house of Mobina (A-96) along with Tiger Memon, Javed Chikna and other co-conspirators. (ii) The appellant (A-54) took weapons training which was imparted by Tiger MemonConfessional Statement of Bashir Ahmed Usman Gani Khairulla (A-13)Confessional statement of A-13 under Section 15 of TADA has been recorded on 16.05.1993 (10:30 hrs.) and 18.05.1993 (17:15 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then D.C.P. Zone III, Bombay. The said confession reveals as under:(i) The appellant (A-54), along with co-accused persons, was present on the 7th floor of a building behind Bhabha Hospital(ii) The appellant (A-54), on the instructions of Tiger Memon, administered oath to other co-accused persons that they will combat Jehad and will not disclose anything to anybody(iii) The appellant (A-54) attended training in handling of arms and ammunitions imparted by Tiger Memon(iv) The appellant (A-54) was present at the residence of Tiger Memon on 11.03.1993 around 11 p.mConfessional Statement of Mohd. Iqbal Mohd. Yusuf Shaikh (A-23)Confessional statement of A-23 under Section 15 of TADA has been recorded on 20.05.1993 (1000 hrs.) and 22.05.1993 (10:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A-23 made the following references with regard to the appellant in his confession:(i) The appellant (A-54), along with co-accused persons, was present on the 7th floor of a building behind Bhabha Hospital(ii) The appellant (A-54), along with other co-accused persons, was administered oath by Tiger Memon that they will combat Jehad(iii) The appellant (A-54), along with other co-accused persons, participated in the training of arms and ammunitions and explosives imparted by Tiger Memon(iv) The appellant (A-54), along with other co-accused persons, was present in a meeting held at a flat in Bandra where Tiger Memon held discussions45) A perusal of the confessional statements of all the above accused, viz., A-11, A-13, A-23, A-29, A-32, A-44, A-49, A-57, A-98 and A-100 clearly establish the fact that it corroborate with each other in material particulars with regard to the involvement of the appellant. After consideration of all the abovesaid confessional statements of the co- accused, the involvement of the appellant in the conspiracy is established inasmuch as:–(i) The appellant participated in the training in handling of arms and ammunitions and explosives at Borghat and Sandheri along with Tiger Memon and other co-conspirators;(ii) The appellant attended conspiratorial meetings wherein plans were chalked out to commit terrorist acts;(iii) The appellant surveyed and conducted reconnaissance of the Stock Exchange Building and BMC building for causing explosions along with A- 44, PW-2 and Javed Chikna (AA);(iv) The appellant was present at Al-Hussaini building at the time when loading of explosives like RDX fitted with time device detonators in various vehicles was being done in the intervening night of 11/12.03.1993;(v) The appellant was closely associated with Tiger Memon and on being asked by him, A-54 administered oath to other co-accused persons;(vi) The appellant also took oath to take part in Jehad;(vii) There was a close link between the appellant and Javed Chikna (AA), who had played a crucial and pivotal role in achieving the object of the conspiracy;(viii) The appellant was fully aware and conscious of the fact that he was waging Jehad and taking and administering of oath by him shows his intent and determination to cause damage and destruction; and (ix) The appellant was fully aware and conscious of the consequences of his actions, and accordingly, played an important role in the entire conspiracy46) Apart from the aforesaid evidence, the involvement and role of the appellant in the conspiracy, as stated above, is disclosed by the deposition of various prosecution witnesses which are as under: Deposition of Mohd. Usman Jan Khan (PW-2)After going through his entire evidence, we summarize his evidence with reference to the appellant (A-54) as under:(i) He knows the appellant as Sardar;(ii) He identified the appellant before the Court during dock proceedings;(iii) He deposed that the appellant, along with other co-accused persons, was involved in planning, conspiring and training;(iv) He deposed that on 04.03.1993, at Taj Mahal Hotel, Tiger Memon asked PW-2, Bashir, Javed Chikna to survey BMC building along with the appellant(v) On 05.03.1993, Bashir Khan administered oath to the accused that whatever they will do, will do for Islam and take revenge(vi) The appellant readily agreed to take revenge and offered to go to Pakistan for training;(vii) PW-2, along with other co-accused, went to the house of the appellant;(viii) On 07.03.1993, A-54 attended the meeting held by Tiger Memon at the residence of Shakil in which Tiger Memon organized separate groups; | 0 | 7,154 | 5,126 | ### 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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seized from A-3 on 25.08.1994: (i) Pakistani passport bearing No. AA-763650 dated 12.04.1993 in the name of Akhtar Ahmed Mohd. bearing the photograph of A-3; and (ii) Temporary residential permit issued for Pakistani nationals duly stamped at New Delhi Airport on 25.08.1994 in the name of Akhtar Ahmed Mohd. 23) Exhibit No. 2505 is the seizure memo prepared by PW-674 at the time of arrest of Rubina Suleman Memon (A-8). The following items were seized from A-8 on 25.08.1994: (i) Pakistani passport bearing No. AC 001087 dated 27.04.1994 in the name of Mrs. Mehtab bearing the photograph of A-8; (ii) Pakistani photo identity card bearing No. BQ 526267/509-69-270214 in the name of Mrs. Mehtab dated 29.03.1994 bearing the photo of A-8; and (iii) Temporary residential permit issued for Pakistani nationals duly stamped at New Delhi Airport on 25.08.1994 in the name of Mrs. Mehtab Aftab. 24) It is, therefore, clear that the recovery of Pakistani identity cards and Pakistani passports from the appellants at the time of their arrest at New Delhi Airport clearly prove that the appellants had relocated to Dubai from Bombay just prior to the blasts on 12.03.1993 and, thereafter, to Pakistan. 25) The prosecution also brought to our notice that the conduct of the appellants after the blasts further establishes that the appellants did not intend to co-operate with the investigation authorities in India and instead travelled on a holiday to Bangkok from Karachi which is evident from the passport entries made in Pakistani passports recovered from Yakub Abdul Razak Memon (A-1) at the time of his arrest at New Delhi Railway Station. After travelling to Bangkok, the appellants arrived at New Delhi Airport via Dubai where they were arrested on 25.08.1994 by PW-674. 26) Pakistani passport No. AA-763650 in respect of Akhtar Ahmed Mohd. (A- 3) shows that the said passport holder left Karachi on 16.04.1993 and reached Bangkok on the same day itself. The said passport holder left Bangkok on 27.04.1993. There is no arrival stamp of any country on the said passport. The said passport holder again left Karachi on 17.06.1994 and reached Dubai on the same day. Again, the said passport holder left Dubai on 25.08.1994 and reached India on the same day itself (Exhibit No. 1553). It is clear from the photo on the passport that Akhtar Ahmed Mohd. and Essa @ Anjum Razak Memon (A-3) are one and the same persons. 27) Exhibit No. 1551 is the Pakistani passport No. AA-763654 in respect of Imran Ahmed Mohammed (A-4) which reveals that the said passport holder left Karachi on 17.04.1993 and reached Bangkok on the same day. The said passport holder left Bangkok on 29.04.1993. There is no arrival stamp of any country on the said passport. Again, the said passport holder left Karachi on 20.06.1994 and entered Dubai on the same day. The said passport holder left Dubai on 28.06.1994. There is no arrival stamp of any country on the passport. Again, the said passport holder left Karachi on 25.07.1994 and reached Dubai. The said person left Dubai on 10.08.1994 and re-entered Dubai on 11.08.1994. Again, the said passport holder left Dubai on 25.08.1994 and arrived at New Delhi on the same day. From the Indian Passport of Yusuf Abdul Razak Memon and Pakistani passport in respect of Imran Ahmed Mohd., it is clear that Imran Ahmed Mohd. and Yusuf Abdul Razak Memon are one and the same persons. 28) Exhibit No. 1562 is the Pakistani Passport No. AA-763653 in respect of Mrs. Mehtab Aftab Ahmed (A-8) which shows that Mrs. Mehtab Aftab Ahmed left Karachi on 16.04.1993 and reached Bangkok on the same day. Again, she left Bangkok on 27.04.1993. There is no arrival stamp of any country on the said passport. Pakistani Passport No. AC-001087 in respect of Mrs. Mehtab Aftab Ahmed shows that she left Karachi on 25.07.1994 and entered Dubai on the same day. She left Dubai on 10.08.1994 and entered Dubai on 11.08.1994. Again, she left Dubai on 25.08.1994 and entered India on the same day i.e., 25.08.1994. The said passports show that Rubina Suleman Memon (A-8) and Mrs. Mehtab Aftab Ahmed are one and the same persons. Other evidence against the Appellants Deposition of Rashid Fakir Mohd. Khatri (PW-417) 29) PW-417 was an Accounts Assistant at Memon Mehta Associates, a firm of Chartered Accountants in which Yakub Abdul Razak Memon (A-1) was a partner. He deposed that Essa @ Anjum (A-3) is the brother of A-1 and was looking after the business of M/s Tejarath International in Bombay in 1993. It is pertinent to note here that A-1 was charged and convicted at head secondly for arranging finance from the funds of M/s Tejarath International for achieving the objective to commit terrorist acts. The evidence on record establishes the involvement of Tejarath International in financing the air tickets of several co-accused persons. Deposition of Lakharaju Narsinhasai Rao (PW-672) PW-672 was a police officer. In his deposition dated 20.6.2000, he deposed that he recovered the details of bank accounts of Rubina Suleman Memon (A-8) from the HSBC Bank, Bandra Branch and that of Essa @ Anjum Abdul Razak Memon (A-3) from the Development Co-operative Bank, Mahim Branch. It is pertinent to note here that M/s Tejarath International was also having an account with the Development Co-op. Bank, Mahim. As already discussed above, evidence of PW-417 clearly establishes that A-3 was involved with the management of M/s Tejarath International, a firm whose funds were involved in financing the conspiratorial activities such as booking of air tickets. Appeal by the State of Maharashtra through CBI: Criminal Appeal No. 419 of 2011 The above-said appeal has been filed by the State against acquittal of A-2, A-6, A-7 and A-8 of the charges framed against them. Except A-8, the CBI has not pressed the same against A-2, A-6 and A-7 before this Court, who was acquitted of (i) a part of charge stated in clause (a) at head secondly framed against her and (ii) charge stated in clause (b).
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the blasts engineered by Tiger Memon nor made any attempt to return to India openly if they had felt that bomb blasts are offences committed in India. This conduct clearly establishes that they were aware of the blasts that were engineered by Tiger Memon who was living with them right from the time of blasts, i.e., 12th March 1993, in Dubai, Pakistan and other places. Their documents for travel to Bangkok and Singapore from Karachi show that they have travelled on Pakistani Passports using fake names. This conduct also establishes their culpability. It is also in evidence that huge amount of jewellery and cash which was abandoned by the members of Memons family was recovered from the Al-Hussaini building when they hurriedly left Bombay just before the blasts. This is also a proof that all the Memons were fully aware of the blasts and their conduct in fleeing away very clearly establishes that they were aware of the blasts and association of Tiger Memon with the blasts38) In view of the materials placed on record by the prosecution and the ultimate analysis of the Designated Court, we fully agree with the conviction and sentence imposed upon the appellants, consequently, the appeals filed by the appellants are liable to be dismissed44) Confessional statement of A-11 under Section 15 of TADA has been recorded on 15.04.1993 and 18.04.1993 by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. The said confession reveals as under: (i) The appellant (A-54) was present in the house of Mobina (A-96) along with Tiger Memon, Javed Chikna and other co-conspirators. (ii) The appellant (A-54) took weapons training which was imparted by Tiger MemonConfessional Statement of Bashir Ahmed Usman Gani Khairulla (A-13)Confessional statement of A-13 under Section 15 of TADA has been recorded on 16.05.1993 (10:30 hrs.) and 18.05.1993 (17:15 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then D.C.P. Zone III, Bombay. The said confession reveals as under:(i) The appellant (A-54), along with co-accused persons, was present on the 7th floor of a building behind Bhabha Hospital(ii) The appellant (A-54), on the instructions of Tiger Memon, administered oath to other co-accused persons that they will combat Jehad and will not disclose anything to anybody(iii) The appellant (A-54) attended training in handling of arms and ammunitions imparted by Tiger Memon(iv) The appellant (A-54) was present at the residence of Tiger Memon on 11.03.1993 around 11 p.mConfessional Statement of Mohd. Iqbal Mohd. Yusuf Shaikh (A-23)Confessional statement of A-23 under Section 15 of TADA has been recorded on 20.05.1993 (1000 hrs.) and 22.05.1993 (10:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A-23 made the following references with regard to the appellant in his confession:(i) The appellant (A-54), along with co-accused persons, was present on the 7th floor of a building behind Bhabha Hospital(ii) The appellant (A-54), along with other co-accused persons, was administered oath by Tiger Memon that they will combat Jehad(iii) The appellant (A-54), along with other co-accused persons, participated in the training of arms and ammunitions and explosives imparted by Tiger Memon(iv) The appellant (A-54), along with other co-accused persons, was present in a meeting held at a flat in Bandra where Tiger Memon held discussions45) A perusal of the confessional statements of all the above accused, viz., A-11, A-13, A-23, A-29, A-32, A-44, A-49, A-57, A-98 and A-100 clearly establish the fact that it corroborate with each other in material particulars with regard to the involvement of the appellant. After consideration of all the abovesaid confessional statements of the co- accused, the involvement of the appellant in the conspiracy is established inasmuch as:–(i) The appellant participated in the training in handling of arms and ammunitions and explosives at Borghat and Sandheri along with Tiger Memon and other co-conspirators;(ii) The appellant attended conspiratorial meetings wherein plans were chalked out to commit terrorist acts;(iii) The appellant surveyed and conducted reconnaissance of the Stock Exchange Building and BMC building for causing explosions along with A- 44, PW-2 and Javed Chikna (AA);(iv) The appellant was present at Al-Hussaini building at the time when loading of explosives like RDX fitted with time device detonators in various vehicles was being done in the intervening night of 11/12.03.1993;(v) The appellant was closely associated with Tiger Memon and on being asked by him, A-54 administered oath to other co-accused persons;(vi) The appellant also took oath to take part in Jehad;(vii) There was a close link between the appellant and Javed Chikna (AA), who had played a crucial and pivotal role in achieving the object of the conspiracy;(viii) The appellant was fully aware and conscious of the fact that he was waging Jehad and taking and administering of oath by him shows his intent and determination to cause damage and destruction; and (ix) The appellant was fully aware and conscious of the consequences of his actions, and accordingly, played an important role in the entire conspiracy46) Apart from the aforesaid evidence, the involvement and role of the appellant in the conspiracy, as stated above, is disclosed by the deposition of various prosecution witnesses which are as under: Deposition of Mohd. Usman Jan Khan (PW-2)After going through his entire evidence, we summarize his evidence with reference to the appellant (A-54) as under:(i) He knows the appellant as Sardar;(ii) He identified the appellant before the Court during dock proceedings;(iii) He deposed that the appellant, along with other co-accused persons, was involved in planning, conspiring and training;(iv) He deposed that on 04.03.1993, at Taj Mahal Hotel, Tiger Memon asked PW-2, Bashir, Javed Chikna to survey BMC building along with the appellant(v) On 05.03.1993, Bashir Khan administered oath to the accused that whatever they will do, will do for Islam and take revenge(vi) The appellant readily agreed to take revenge and offered to go to Pakistan for training;(vii) PW-2, along with other co-accused, went to the house of the appellant;(viii) On 07.03.1993, A-54 attended the meeting held by Tiger Memon at the residence of Shakil in which Tiger Memon organized separate groups;
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State of Madhya Pradesh and Others Vs. Shyama Charan Shukla | that the expression right to recover arrears of any tax or duty" covered not only tax which had already been assessed but also all those taxes which became due but remained to be assessed. This argument was not accepted by the High Court and was disposed of in the following manner"Before the assessment proceedings are completed and the final amount due is determined it cannot be said that any particular amount of tax is due against the assessee. So long as there is no such determination and no demand for payment of the tax is raised, it cannot be said that the assessee is in arrears of any taxes. This is so even where the assessee is required to pay the tax amount as per his own determination along with the returns submitted by him".In the opinion of the High Court under s. 78 the place of assessment of the tax must be the place which was included in the territories of the successor State. So long as the assessee was not registered as a dealer with reference to any particular place of business it could not be said that Katangjhiri in Balaghat district was the place of business with respect to the ore extracted from the mines in Nagpur and Bhandara districts. Registration certificate granted to the assessee in 1958 after the re-organisation of the States in which the place of business was shown at Katanjhiri could not be made use of as that certificate could have no relation to Nagpur and Bhandara districts which were no longer within the State of Madhya Pradesh on that date. Therefore the Sales tax Officer, Balaghat, had no jurisdiction to assess the: tax with respect to sales effected from the mines in Nagpur and Bhandara districts. As the assessment order was a composite order it was liable to be quashed as a whole."4. Part VII of the States Reorganisation Act 1956 relates to apportionment of assets and liabilities of certain Part A and-Part B States. Section 76 deals with land and goods, s. 77 with treasury and bank balances and s. 78 with arrears of taxes. It is unnecessary to refer to other sections in the Chapter except ss. 83 and 91. Section 83 provides, inter alia, that the liability of an existing State to refund any tax or duty other than that on property........ collected in excess shall be the liability of the successor State in whose territories the place of assessment of that tax or duty is included. Section 91 is the residuary provision. According to it the burden or benefit of assets and liabilities of an existing State not dealt within the foregoing provisions of Part VII has to pass in the manner indicated in clauses (a) and (b). Thus so far as taxes are concerned ss. 78 and 83 indicate that when the question is of any tax or duty other than that on property the right has been conferred and the liability imposed, in case of refund, on the successor State in whose territories the place of assessment of that tax or duty is included. Part VII in the States Re-organisation Act was intended to effectuate apportionment of assets and liabilities between the existing State and the successor State. .Existing State" was defined by s. 2 (g) to mean a State specified in the first schedule to the Constitution at the commencement of the Act of 1956. A "successor State" was defined by s. 2(o) to mean in relation to an existing State that State to which the whole or any part of the territories of that existing State was transferred by the provisions of Part II. It is difficult to give a narrow meaning to the word "arrears" in s. 78 in the manner done by the High Court. If the view of the High Court is to be accepted arrears of tax can refer to only that amount of tax which has been quantified after a proper assessment. This would lead to the result that where there has been no quantification or assessment order the position would be wholly uncertain and it would not be possible to say which State would be entitled to realise those taxes or duties. In other words, in the present case since the tax liability had not been determined or quantified there would be no arrears of tax and s. 78 will be inapplicable. In our judgment arrears should be given their proper meaning as understood in the ordinary sense of that word. According to the Websters New International Dictionary "arrears" means among other things "that which is behind in payment or which remains unpaid though due". The example given is of arrears of rent, wages or taxes. In Strouds Judicial Dictionary, third edition, it has been stated that the word "arrears" presupposes a time fixed for payment of a sum of money and the lapse of time thereafter without payment". It is a part of the general scheme of all sales tax laws that taxes become due the moment a dealer makes either purchases or sales which are subject to taxation and the obligation to pay the tax arises. Although the tax liability which comes into existence cannot be enforced till the quantification is effected by assessment proceedings the liability for payment of tax is independent of the assessment: (See Kedarnath Jute Mfg. Co. Ltd. v. Commissioner of Income tax, Central Calcutta)([1972] 1 S.C.R. 277.). We have no doubt that the word "arrears" in respect of tax has been used in the sense of dues or what has become due by way of tax and that does not depend on assessment proceedings or quantification of the amount. We do not consider that the amounts due by way of tax are covered by the residuary provisions i.e. S. 91 of the Act of 1956.The High Court has disposed of the mater mainly on the interpretation of s. 78 of the Act of 1956 with which we are unable to agree. | 1[ds]In the opinion of the High Court under s. 78 the place of assessment of the tax must be the place which was included in the territories of the successor State. So long as the assessee was not registered as a dealer with reference to any particular place of business it could not be said that Katangjhiri in Balaghat district was the place of business with respect to the ore extracted from the mines in Nagpur and Bhandara districts. Registration certificate granted to the assessee in 1958 after the re-organisation of the States in which the place of business was shown at Katanjhiri could not be made use of as that certificate could have no relation to Nagpur and Bhandara districts which were no longer within the State of Madhya Pradesh on that date. Therefore the Sales tax Officer, Balaghat, had no jurisdiction to assess the: tax with respect to sales effected from the mines in Nagpur and Bhandara districts. As the assessment order was a composite order it was liable to be quashed as aVII of the States Reorganisation Act 1956 relates to apportionment of assets and liabilities of certain Part A and-Part B States. Section 76 deals with land and goods, s. 77 with treasury and bank balances and s. 78 with arrears of taxes. It is unnecessary to refer to other sections in the Chapter except ss. 83 and 91. Section 83 provides, inter alia, that the liability of an existing State to refund any tax or duty other than that on property........ collected in excess shall be the liability of the successor State in whose territories the place of assessment of that tax or duty is included. Section 91 is the residuary provision. According to it the burden or benefit of assets and liabilities of an existing State not dealt within the foregoing provisions of Part VII has to pass in the manner indicated in clauses (a) and (b). Thus so far as taxes are concerned ss. 78 and 83 indicate that when the question is of any tax or duty other than that on property the right has been conferred and the liability imposed, in case of refund, on the successor State in whose territories the place of assessment of that tax or duty is included. Part VII in the States Re-organisation Act was intended to effectuate apportionment of assets and liabilities between the existing State and the successor State. .Existing State" was defined by s. 2 (g) to mean a State specified in the first schedule to the Constitution at the commencement of the Act of 1956. A "successor State" was defined by s. 2(o) to mean in relation to an existing State that State to which the whole or any part of the territories of that existing State was transferred by the provisions of Part II. It is difficult to give a narrow meaning to the word "arrears" in s. 78 in the manner done by the High Court. If the view of the High Court is to be accepted arrears of tax can refer to only that amount of tax which has been quantified after a proper assessment. This would lead to the result that where there has been no quantification or assessment order the position would be wholly uncertain and it would not be possible to say which State would be entitled to realise those taxes or duties. In other words, in the present case since the tax liability had not been determined or quantified there would be no arrears of tax and s. 78 will be inapplicable. In our judgment arrears should be given their proper meaning as understood in the ordinary sense of that word. According to the Websters New International Dictionary "arrears" means among other things "that which is behind in payment or which remains unpaid though due". The example given is of arrears of rent, wages or taxes. In Strouds Judicial Dictionary, third edition, it has been stated that the word "arrears" presupposes a time fixed for payment of a sum of money and the lapse of time thereafter without payment". It is a part of the general scheme of all sales tax laws that taxes become due the moment a dealer makes either purchases or sales which are subject to taxation and the obligation to pay the tax arises. Although the tax liability which comes into existence cannot be enforced till the quantification is effected by assessment proceedings the liability for payment of tax is independent of the assessment: (See Kedarnath Jute Mfg. Co. Ltd. v. Commissioner of Income tax, Central Calcutta)([1972] 1 S.C.R. 277.). We have no doubt that the word "arrears" in respect of tax has been used in the sense of dues or what has become due by way of tax and that does not depend on assessment proceedings or quantification of the amount. We do not consider that the amounts due by way of tax are covered by the residuary provisions i.e. S. 91 of the Act of 1956.The High Court has disposed of the mater mainly on the interpretation of s. 78 of the Act of 1956 with which we are unable to agree. | 1 | 2,195 | 944 | ### Instruction:
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that the expression right to recover arrears of any tax or duty" covered not only tax which had already been assessed but also all those taxes which became due but remained to be assessed. This argument was not accepted by the High Court and was disposed of in the following manner"Before the assessment proceedings are completed and the final amount due is determined it cannot be said that any particular amount of tax is due against the assessee. So long as there is no such determination and no demand for payment of the tax is raised, it cannot be said that the assessee is in arrears of any taxes. This is so even where the assessee is required to pay the tax amount as per his own determination along with the returns submitted by him".In the opinion of the High Court under s. 78 the place of assessment of the tax must be the place which was included in the territories of the successor State. So long as the assessee was not registered as a dealer with reference to any particular place of business it could not be said that Katangjhiri in Balaghat district was the place of business with respect to the ore extracted from the mines in Nagpur and Bhandara districts. Registration certificate granted to the assessee in 1958 after the re-organisation of the States in which the place of business was shown at Katanjhiri could not be made use of as that certificate could have no relation to Nagpur and Bhandara districts which were no longer within the State of Madhya Pradesh on that date. Therefore the Sales tax Officer, Balaghat, had no jurisdiction to assess the: tax with respect to sales effected from the mines in Nagpur and Bhandara districts. As the assessment order was a composite order it was liable to be quashed as a whole."4. Part VII of the States Reorganisation Act 1956 relates to apportionment of assets and liabilities of certain Part A and-Part B States. Section 76 deals with land and goods, s. 77 with treasury and bank balances and s. 78 with arrears of taxes. It is unnecessary to refer to other sections in the Chapter except ss. 83 and 91. Section 83 provides, inter alia, that the liability of an existing State to refund any tax or duty other than that on property........ collected in excess shall be the liability of the successor State in whose territories the place of assessment of that tax or duty is included. Section 91 is the residuary provision. According to it the burden or benefit of assets and liabilities of an existing State not dealt within the foregoing provisions of Part VII has to pass in the manner indicated in clauses (a) and (b). Thus so far as taxes are concerned ss. 78 and 83 indicate that when the question is of any tax or duty other than that on property the right has been conferred and the liability imposed, in case of refund, on the successor State in whose territories the place of assessment of that tax or duty is included. Part VII in the States Re-organisation Act was intended to effectuate apportionment of assets and liabilities between the existing State and the successor State. .Existing State" was defined by s. 2 (g) to mean a State specified in the first schedule to the Constitution at the commencement of the Act of 1956. A "successor State" was defined by s. 2(o) to mean in relation to an existing State that State to which the whole or any part of the territories of that existing State was transferred by the provisions of Part II. It is difficult to give a narrow meaning to the word "arrears" in s. 78 in the manner done by the High Court. If the view of the High Court is to be accepted arrears of tax can refer to only that amount of tax which has been quantified after a proper assessment. This would lead to the result that where there has been no quantification or assessment order the position would be wholly uncertain and it would not be possible to say which State would be entitled to realise those taxes or duties. In other words, in the present case since the tax liability had not been determined or quantified there would be no arrears of tax and s. 78 will be inapplicable. In our judgment arrears should be given their proper meaning as understood in the ordinary sense of that word. According to the Websters New International Dictionary "arrears" means among other things "that which is behind in payment or which remains unpaid though due". The example given is of arrears of rent, wages or taxes. In Strouds Judicial Dictionary, third edition, it has been stated that the word "arrears" presupposes a time fixed for payment of a sum of money and the lapse of time thereafter without payment". It is a part of the general scheme of all sales tax laws that taxes become due the moment a dealer makes either purchases or sales which are subject to taxation and the obligation to pay the tax arises. Although the tax liability which comes into existence cannot be enforced till the quantification is effected by assessment proceedings the liability for payment of tax is independent of the assessment: (See Kedarnath Jute Mfg. Co. Ltd. v. Commissioner of Income tax, Central Calcutta)([1972] 1 S.C.R. 277.). We have no doubt that the word "arrears" in respect of tax has been used in the sense of dues or what has become due by way of tax and that does not depend on assessment proceedings or quantification of the amount. We do not consider that the amounts due by way of tax are covered by the residuary provisions i.e. S. 91 of the Act of 1956.The High Court has disposed of the mater mainly on the interpretation of s. 78 of the Act of 1956 with which we are unable to agree.
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In the opinion of the High Court under s. 78 the place of assessment of the tax must be the place which was included in the territories of the successor State. So long as the assessee was not registered as a dealer with reference to any particular place of business it could not be said that Katangjhiri in Balaghat district was the place of business with respect to the ore extracted from the mines in Nagpur and Bhandara districts. Registration certificate granted to the assessee in 1958 after the re-organisation of the States in which the place of business was shown at Katanjhiri could not be made use of as that certificate could have no relation to Nagpur and Bhandara districts which were no longer within the State of Madhya Pradesh on that date. Therefore the Sales tax Officer, Balaghat, had no jurisdiction to assess the: tax with respect to sales effected from the mines in Nagpur and Bhandara districts. As the assessment order was a composite order it was liable to be quashed as aVII of the States Reorganisation Act 1956 relates to apportionment of assets and liabilities of certain Part A and-Part B States. Section 76 deals with land and goods, s. 77 with treasury and bank balances and s. 78 with arrears of taxes. It is unnecessary to refer to other sections in the Chapter except ss. 83 and 91. Section 83 provides, inter alia, that the liability of an existing State to refund any tax or duty other than that on property........ collected in excess shall be the liability of the successor State in whose territories the place of assessment of that tax or duty is included. Section 91 is the residuary provision. According to it the burden or benefit of assets and liabilities of an existing State not dealt within the foregoing provisions of Part VII has to pass in the manner indicated in clauses (a) and (b). Thus so far as taxes are concerned ss. 78 and 83 indicate that when the question is of any tax or duty other than that on property the right has been conferred and the liability imposed, in case of refund, on the successor State in whose territories the place of assessment of that tax or duty is included. Part VII in the States Re-organisation Act was intended to effectuate apportionment of assets and liabilities between the existing State and the successor State. .Existing State" was defined by s. 2 (g) to mean a State specified in the first schedule to the Constitution at the commencement of the Act of 1956. A "successor State" was defined by s. 2(o) to mean in relation to an existing State that State to which the whole or any part of the territories of that existing State was transferred by the provisions of Part II. It is difficult to give a narrow meaning to the word "arrears" in s. 78 in the manner done by the High Court. If the view of the High Court is to be accepted arrears of tax can refer to only that amount of tax which has been quantified after a proper assessment. This would lead to the result that where there has been no quantification or assessment order the position would be wholly uncertain and it would not be possible to say which State would be entitled to realise those taxes or duties. In other words, in the present case since the tax liability had not been determined or quantified there would be no arrears of tax and s. 78 will be inapplicable. In our judgment arrears should be given their proper meaning as understood in the ordinary sense of that word. According to the Websters New International Dictionary "arrears" means among other things "that which is behind in payment or which remains unpaid though due". The example given is of arrears of rent, wages or taxes. In Strouds Judicial Dictionary, third edition, it has been stated that the word "arrears" presupposes a time fixed for payment of a sum of money and the lapse of time thereafter without payment". It is a part of the general scheme of all sales tax laws that taxes become due the moment a dealer makes either purchases or sales which are subject to taxation and the obligation to pay the tax arises. Although the tax liability which comes into existence cannot be enforced till the quantification is effected by assessment proceedings the liability for payment of tax is independent of the assessment: (See Kedarnath Jute Mfg. Co. Ltd. v. Commissioner of Income tax, Central Calcutta)([1972] 1 S.C.R. 277.). We have no doubt that the word "arrears" in respect of tax has been used in the sense of dues or what has become due by way of tax and that does not depend on assessment proceedings or quantification of the amount. We do not consider that the amounts due by way of tax are covered by the residuary provisions i.e. S. 91 of the Act of 1956.The High Court has disposed of the mater mainly on the interpretation of s. 78 of the Act of 1956 with which we are unable to agree.
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Commissioner Of Income-Tax, Bier Vs. M/S. Bankipur Club Ltd | assessee was a mutual benefit association and its income was not taxable." The said judgment was followed subsequently in all matters arising under Ss. 256(1) and 256(2) of the Act. So, for the assessment years which are subject-matter of cases falling under Group-D stated hereinabove, the above decision reported in (P&H) (supra) was followed and the income received by the assessee under the head "Others" - admission fees, readmission fee, periodical subscription from the members, etc, - were held to be exempt or non-taxable on the principle of mutuality. 13. The above four sets of cases falling in Groups A to D shall alone be covered by this judgment. With regard to 7 cases/appeals falling in Group-E the assessee is Cawnpore Club Ltd. It is seen that the income that was sought to be assessed in the case of assessee, was one derived from property let out and also interest received from F.D.R., N.S.C. etc. In these cases, the Court held that income should be assessed as one from "other sources" and not income from property. It does not appear that the larger plea that the income is totally exempt on the principle of mutuality, was decided in favour of the assessee. In the appeals filed by the Revenue, the only question that may probably arise is, whether income received from the property let out and interest by way of F.D.Rs., N.S.C. etc. can be brought to tax under the head "income from property". Since the issue raised in this batch of seven cases, is not similar to or same as the one involved in the other cases coming under Groups A to D, we do not propose to deal either with the facts or the decisions rendered by the authorities in this batch of cases (Group-E). All that we propose to do is to delink the cases coming under Group-E and direct them to be posted separately for hearing and disposal before an appropriate Bench. 14. Now we turn to the main question canvassed by the Revenue in the appeals coming under Groups A to D, namely, whether the assessee - mutual clubs - are entitled to exemption for the receipts or surplus arising from the sales of drinks, refreshments etc. or amounts received by way of rent for letting out the buildings or amounts received by way of admission fees, periodical subscriptions and receipts of similar nature, from its members ? In all these cases, the Tribunal as also the High Court have found that the amounts received by the clubs were for supply of drinks, refreshments or other goods as also the letting out of building for rent or the amounts received by way of admission fees, periodical subscription etc. from the members of the clubs were only for/towards charges for the privileges, conveniences and amenities provided to the members, which they were entitled to as per the rules and regulations of the respective clubs. It has also been found that different clubs realised various sums on the above counts only to afford to its members the usual privileges, advantages, conveniences and accommodation. In other words, the services offered on the above counts were not done, with any profit motive, and were not tainted with commerciality. The facilities were offered only as a matter of convenience for the use of the members, (and their friends, if any, availing of the facilities occasionally). In the light of the above findings, it necessarily follows that the receipts for the various facilities extended by the clubs to its members, as stated hereinabove, as part of the usual privileges, advantages and conveniences, attached to the membership of the club, cannot be said to be "a trading activity." The surplus - excess of receipts over the expenditure - as a result of mutual arrangement, cannot be said to be "income" for the purpose of the Act. 15. Our attention was invited to a few decisions which have dealt with the subject-matter in issue herein. The gist of the various English decisions has been succinctly summarised in the textbooks which we have adverted to hereinabove (Halsburys Laws of England, Simons Taxes, Wheatcroft etc.). Particular stress was laid on the decisions of the Supreme Court in CIT v. Royal Western India Turf Club Ltd. (SC), CIT v. Kumbakonam Mutual Benefit Fund Ltd. (SC), Fletcher (on his own behalf and on behalf of Trustees and Committee of Doctors Cave Bathing Club v. Income-tax Commissioner (supra). We do not think it necessary to deal at length with the above decisions except to state the principle discernible from them. We understand these decisions to lay down the broad proposition - that, if the object of the assessee-company claiming to be a "mutual concern" or "club", is to carry on a particular business and money is realised both from the members and from non-members, for the same consideration by giving the same or similar facilities to all alike in respect of the one and the same business carried on by it, the dealings as a whole disclose the same profit earning motive and are alike tainted with commerciality. In other words, the activity carried on by the assessee in such cases, claiming to be a "mutual concern" or "Members club" is a trade or an adventure in the nature of trade and the transactions entered into with the members or non-members alike is a trade/business/transaction and the resultant surplus is certainly profit - income liable to tax. We should also state, that "at what point, does the relationship of mutuality end and that of trading begin" is a difficult and vexed question. A host of factors may have to be considered to arrive at a conclusion. "Whether or not the persons dealing with each other, is a "mutual club" or carrying on a trading activity or an adventure in the nature of trade", is largely a question of fact [Wilcock v. Pinto & Co. 9 Tax(Cases) 111, 132 (CA) : 1925 1 (KB) 30 at 44 and 45]. | 0[ds]In the light of the above findings, it necessarily follows that the receipts for the various facilities extended by the clubs to its members, as stated hereinabove, as part of the usual privileges, advantages and conveniences, attached to the membership of the club, cannot be said to be "a trading activity." The surplusexcess of receipts over the expenditureas a result of mutual arrangement, cannot be said to be "income" for the purpose of the Act15. Our attention was invited to a few decisions which have dealt with ther in issue herein. The gist of the various English decisions has been succinctly summarised in the textbooks which we have adverted to hereinabove (Halsburys Laws of England, Simons Taxes, Wheatcroft etc.). Particular stress was laid on the decisions of the Supreme Court in CIT v. Royal Western India Turf Club Ltd. (SC), CIT v. Kumbakonam Mutual Benefit Fund Ltd. (SC), Fletcher (on his own behalf and on behalf of Trustees and Committee of Doctors Cave Bathing Club v.x Commissioner (supra). We do not think it necessary to deal at length with the above decisions except to state the principle discernible from them. We understand these decisions to lay down the broad propositionthat, if the object of they claiming to be a "mutual concern" or "club", is to carry on a particular business and money is realised both from the members and from, for the same consideration by giving the same or similar facilities to all alike in respect of the one and the same business carried on by it, the dealings as a whole disclose the same profit earning motive and are alike tainted with commerciality. In other words, the activity carried on by the assessee in such cases, claiming to be a "mutual concern" or "Members club" is a trade or an adventure in the nature of trade and the transactions entered into with the members ors alike is a trade/business/transaction and the resultant surplus is certainly profitincome liable to tax. We should also state, that "at what point, does the relationship of mutuality end and that of trading begin" is a difficult and vexed question. A host of factors may have to be considered to arrive at a conclusion. "Whether or not the persons dealing with each other, is a "mutual club" or carrying on a trading activity or an adventure in the nature of trade", is largely a question of fact[Wilcock v. Pinto & Co. 9 Tax(Cases) 111, 132 (CA) : 1925 1 (KB) 30 at 44 and 45]. | 0 | 5,518 | 496 | ### Instruction:
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assessee was a mutual benefit association and its income was not taxable." The said judgment was followed subsequently in all matters arising under Ss. 256(1) and 256(2) of the Act. So, for the assessment years which are subject-matter of cases falling under Group-D stated hereinabove, the above decision reported in (P&H) (supra) was followed and the income received by the assessee under the head "Others" - admission fees, readmission fee, periodical subscription from the members, etc, - were held to be exempt or non-taxable on the principle of mutuality. 13. The above four sets of cases falling in Groups A to D shall alone be covered by this judgment. With regard to 7 cases/appeals falling in Group-E the assessee is Cawnpore Club Ltd. It is seen that the income that was sought to be assessed in the case of assessee, was one derived from property let out and also interest received from F.D.R., N.S.C. etc. In these cases, the Court held that income should be assessed as one from "other sources" and not income from property. It does not appear that the larger plea that the income is totally exempt on the principle of mutuality, was decided in favour of the assessee. In the appeals filed by the Revenue, the only question that may probably arise is, whether income received from the property let out and interest by way of F.D.Rs., N.S.C. etc. can be brought to tax under the head "income from property". Since the issue raised in this batch of seven cases, is not similar to or same as the one involved in the other cases coming under Groups A to D, we do not propose to deal either with the facts or the decisions rendered by the authorities in this batch of cases (Group-E). All that we propose to do is to delink the cases coming under Group-E and direct them to be posted separately for hearing and disposal before an appropriate Bench. 14. Now we turn to the main question canvassed by the Revenue in the appeals coming under Groups A to D, namely, whether the assessee - mutual clubs - are entitled to exemption for the receipts or surplus arising from the sales of drinks, refreshments etc. or amounts received by way of rent for letting out the buildings or amounts received by way of admission fees, periodical subscriptions and receipts of similar nature, from its members ? In all these cases, the Tribunal as also the High Court have found that the amounts received by the clubs were for supply of drinks, refreshments or other goods as also the letting out of building for rent or the amounts received by way of admission fees, periodical subscription etc. from the members of the clubs were only for/towards charges for the privileges, conveniences and amenities provided to the members, which they were entitled to as per the rules and regulations of the respective clubs. It has also been found that different clubs realised various sums on the above counts only to afford to its members the usual privileges, advantages, conveniences and accommodation. In other words, the services offered on the above counts were not done, with any profit motive, and were not tainted with commerciality. The facilities were offered only as a matter of convenience for the use of the members, (and their friends, if any, availing of the facilities occasionally). In the light of the above findings, it necessarily follows that the receipts for the various facilities extended by the clubs to its members, as stated hereinabove, as part of the usual privileges, advantages and conveniences, attached to the membership of the club, cannot be said to be "a trading activity." The surplus - excess of receipts over the expenditure - as a result of mutual arrangement, cannot be said to be "income" for the purpose of the Act. 15. Our attention was invited to a few decisions which have dealt with the subject-matter in issue herein. The gist of the various English decisions has been succinctly summarised in the textbooks which we have adverted to hereinabove (Halsburys Laws of England, Simons Taxes, Wheatcroft etc.). Particular stress was laid on the decisions of the Supreme Court in CIT v. Royal Western India Turf Club Ltd. (SC), CIT v. Kumbakonam Mutual Benefit Fund Ltd. (SC), Fletcher (on his own behalf and on behalf of Trustees and Committee of Doctors Cave Bathing Club v. Income-tax Commissioner (supra). We do not think it necessary to deal at length with the above decisions except to state the principle discernible from them. We understand these decisions to lay down the broad proposition - that, if the object of the assessee-company claiming to be a "mutual concern" or "club", is to carry on a particular business and money is realised both from the members and from non-members, for the same consideration by giving the same or similar facilities to all alike in respect of the one and the same business carried on by it, the dealings as a whole disclose the same profit earning motive and are alike tainted with commerciality. In other words, the activity carried on by the assessee in such cases, claiming to be a "mutual concern" or "Members club" is a trade or an adventure in the nature of trade and the transactions entered into with the members or non-members alike is a trade/business/transaction and the resultant surplus is certainly profit - income liable to tax. We should also state, that "at what point, does the relationship of mutuality end and that of trading begin" is a difficult and vexed question. A host of factors may have to be considered to arrive at a conclusion. "Whether or not the persons dealing with each other, is a "mutual club" or carrying on a trading activity or an adventure in the nature of trade", is largely a question of fact [Wilcock v. Pinto & Co. 9 Tax(Cases) 111, 132 (CA) : 1925 1 (KB) 30 at 44 and 45].
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In the light of the above findings, it necessarily follows that the receipts for the various facilities extended by the clubs to its members, as stated hereinabove, as part of the usual privileges, advantages and conveniences, attached to the membership of the club, cannot be said to be "a trading activity." The surplusexcess of receipts over the expenditureas a result of mutual arrangement, cannot be said to be "income" for the purpose of the Act15. Our attention was invited to a few decisions which have dealt with ther in issue herein. The gist of the various English decisions has been succinctly summarised in the textbooks which we have adverted to hereinabove (Halsburys Laws of England, Simons Taxes, Wheatcroft etc.). Particular stress was laid on the decisions of the Supreme Court in CIT v. Royal Western India Turf Club Ltd. (SC), CIT v. Kumbakonam Mutual Benefit Fund Ltd. (SC), Fletcher (on his own behalf and on behalf of Trustees and Committee of Doctors Cave Bathing Club v.x Commissioner (supra). We do not think it necessary to deal at length with the above decisions except to state the principle discernible from them. We understand these decisions to lay down the broad propositionthat, if the object of they claiming to be a "mutual concern" or "club", is to carry on a particular business and money is realised both from the members and from, for the same consideration by giving the same or similar facilities to all alike in respect of the one and the same business carried on by it, the dealings as a whole disclose the same profit earning motive and are alike tainted with commerciality. In other words, the activity carried on by the assessee in such cases, claiming to be a "mutual concern" or "Members club" is a trade or an adventure in the nature of trade and the transactions entered into with the members ors alike is a trade/business/transaction and the resultant surplus is certainly profitincome liable to tax. We should also state, that "at what point, does the relationship of mutuality end and that of trading begin" is a difficult and vexed question. A host of factors may have to be considered to arrive at a conclusion. "Whether or not the persons dealing with each other, is a "mutual club" or carrying on a trading activity or an adventure in the nature of trade", is largely a question of fact[Wilcock v. Pinto & Co. 9 Tax(Cases) 111, 132 (CA) : 1925 1 (KB) 30 at 44 and 45].
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Syed Israr Masood, Forest Contractor, Ret Ghat, Bhopal Vs. State of Madhya Pradesh | the trees standing on the bank of Nalla by stating as follows:"But there is nothing in the plaintiffs complaints to the Department at any stage alleging that this reservation had been made after the auction had taken place. The idea appears to be an after-thought. The mere oral statement of the plaintiff and his witnesses that this marking for reservation ha d taken place after the auction, on the basis that they did not see these markings about reservation of the trees near the Nalla when they had gone to that forest on earlier occasions, are wholly insufficient to come to the conclusion that the Nalla area had been reserved after the auction. The aforesaid reasoning is based entirely on the assumption that in one of the complaints preferred by the plaintiff before the Department officers, it had been alleged by h im, that the reservation of the trees on the bank of Nalla had been made after the auction had taken place. A mere reference to Exh. P-l is sufficient to show that the aforesaid assumption made by the High Court is wholly erroneous. Exh. P-l is a copy of the representation dated December 28, 1960 submitted by the plaintiff to the Divisional Forest officer (East), Bhopal. In paragraph 4 thereof, the plaintiff had stated as follows:"That the applicant inspected the coupe in or about the first week of November 1960 to give the coupe boundary certificate as is required under Clause 2 of the draft agreement deed. During this inspection the applicant was surprised to know that there were numerous irregularities committed in the marking of trees and huge area containing the Forest Produce marked for sale in the said coupe was subsequently reserved." (underlining supplied) Thus, the correct factual position is that the plaintiff had categorically complained to the Department that a substantial area containing the forest produce, which had all been originally marked for sale, had been subsequently reserved, with the result that the quantity of timber available for extraction had become substantially reduced, The criticism made by the High Court that the argument advanced by the plaintiff was the result of an after-thought, was therefore not justified. 9. We may at this stage refer to Condition No. 3 in the sale notice (Exn. D/l) on which strong reliance was placed on behalf of the respondent. That condition reads:"The details of quantities of forest produce announced at the time of auction are correct to the best of the knowledge of the Divisional Forest officer but are not guaranteed to any extent The intending bidders are, therefore, advised to inspect on the spot the contract area and the produce they intend to bid for with a view to satisfy themselves about its correctness. No claim shall lie against the State Government for compensation or any other relief, if the details of the quantities are subsequently found to be incorrect". In our opinion, the trial court was perfectly right in its view that, while the said condition will operate to prevent the Contractor from claiming any damages or compensation from the State Government on the ground that the details of the quantity of the forest produce were subsequently found to be incorrect, it will not preclude him from repudiating the contract on its being found that there was substantial variance between the particulars furnished at the time of the auction regarding the quantity and quality of timber that will be available for extraction in the concerned coupes and the quantity etc. Of tree growth actually found to be available on the site. It has been clearly established by the evidence in this case that a very substantial quantity of timber standing on the bank of Nalla had been marked for extraction and numbered and the auction sale had been held on the basis that the highest bid der would be entitled to fell and remove all those trees. But by the time the coupes were allowed to be inspected by the auction- purchaser, that area was declared to be "reserved", with the result that there was a complete prohibition against th e felling of any timber therefrom. This has substantially altered the very foundation of the contract and hence it was perfectly open to the plaintiff to repudiate the contract and claim a refund of the amount deposited by him as a part payment of the purchase price. 10. We are unable to agree with the view expressed by the High A Court that "the plaintiff cannot succeed unless he proved that, even after excluding the trees standing on the reserved area, the rest of the forest did not have sufficient number of trees which would satisfy the assurance given at the time of the auction". The subject matter of the auction sale was the totality of the trees which were marked for cutting in the two coupes. Since a substantial number of the marked trees was contained in the area which was subsequently declared as "reserved", it is inevitable that there was a corresponding diminution in the total quantity of timber which was announced as available for cutting at the time of the auction sale. 11. We do not, therefore, find it possible to agree with the reasons stated by the High Court for refusing the plaintiffs prayer for refund of the amount paid by him by way of the first installment of the sale price . The conclusion recorded by the trial court on this issue was perfectly correct and the High Court was in error in interfering with the said finding. 12. We notice, however, that a slight mistake has crept into the judgment and decree of the trial court, inasmuch as the amount of the first installment refund has been wrongly mentioned therein as Rs. 17, 500, whereas the amount actually paid by the plaintiff by way of the first installment was only Rs. l7, 250. A modification to this extent is, therefore, called for in the decree passed by the trial court. 13. | 1[ds]Admittedly, the auction sale was of the right to cut the trees which had been marked and numbered in the entire area covered by the two coupes in question. Details regarding the quantity and quality of timber available for cutting in the respective coupes were announced by the concerned Range officers at the time of auction and it was on the basis of the said information that the participants in the auction were invited to bid. The trial Court as well as the High Court have concurrently found that an assurance had been given by the Department at the time of the auction that the two coupes contained the specified quantity of timber of different varieties and girth and that the details then given were as set out in the tabular statement appended to paragraph 3 of the written statement of the defendant. The plaintiff (examined as P.W. 2) and P.Ws. 3 to 6 all of whom had inspected the coupes subsequent to the auction sale have sworn that the quantity of the timber that was actually available for cutting in the two coupes was considerably less than the quantity announced at the time of the auction. The oral testimony given by them is corroborated by the statements contained in Exhibits p 1,6 and, which are copies of the various representations made by the plaintiff to the offices of the Forest Department after he found out on inspection of the coupes that there was vast divergence between what was announced at the time of the auction as the quantity of the timber available for cutting from the two coupes in question and the quantity that was actually found to be available. Even though the thenl Forest officer, who was examined as D.W. 2, has stated in the evidence that after receipt of the plaintiffs complaint, he inspected the coupes and submitted a detailed inspection report to the Divisional Forest officer, the defendant did not produce the said report in Court, it has also come out in the evidence of D.W. 3, who was the Forest Guard in the area concerned at the relevant time, that he had submitted to the Range officer a report containing details of the timber available for cutting in the two coupes. The aforementioned two reports would have been of valuable assistance in determining the extent of shortfall, if any, in the quantity of timber actually available for cutting in t he coupes when compared with the particulars given out at the auction. Then of the two reports by the dependant, who alone was in possession of the documentary evidence capable of throwing light on ther of this crucial issue, assumes significance in view of the admission made by D.W. 3 that during his inspection of the coupes pursuant to the complaint received from the plaintiff he had found that there were some trees which had been numbered for cutting but had not been hammer marked, that there were some other trees which contained hammer marks only at one place instead of at the base as well as at breast height, as required under the rules, and that there were still some other trees which ha d been marked by hammer but had not been assigned any number. The inspection report prepared by this witness which has been suppressed is a very material document since the witness has sworn that he had actually counted and noted the precise number of trees in respect of which such irregularitieswere found to have beencommitted. Another important admission made by this witness is that there was some truth in the complaint of the plaintiff with respect to the reservation of thee evidence clearly shows that there was a large number of trees of different varieties situated on the bank of a Nalla in Coupe No. 2 "B" and they had been hammer marked and serially numbered for cutting and removal. At the time of the auction sale, the Department had treated these trees as being available for extraction by the contractor and it was on that basis that the particulars regarding the total quantity of timber belonging to different species available for cutting in t he two coupes were announced to the bidders. However, subsequently, the area comprising the bank of the said Nalla was declared as "reserved", with the result that there was a prohibition against cutting of the trees from the said reserved area. The plaintiff in his evidence, as P.W.2, has stated that there were about 300 teak trees in the area forming the bank of the Nalla and that the value of those trees would amount to between Rs. 10, 000 and Rs. 12, 000. Though three officers of the Forest Department were examined on the side of the defendant, the aforesaid testimony given by the plaintiff has not been controverted by them,Notwithstanding the aforesaid facts brought out in the A evidence, the High Court summarily rejected the plaintiffs contention based on the factum of reservation of the trees standing on the bank of Nalla by stating as follows:"But there is nothing in the plaintiffs complaints to the Department at any stage alleging that this reservation had been made after the auction had taken place. The idea appears to be an. The mere oral statement of the plaintiff and his witnesses that this marking for reservation ha d taken place after the auction, on the basis that they did not see these markings about reservation of the trees near the Nalla when they had gone to that forest on earlier occasions, are wholly insufficient to come to the conclusion that the Nalla area had been reserved after thee aforesaid reasoning is based entirely on the assumption that in one of the complaints preferred by the plaintiff before the Department officers, it had been alleged by h im, that the reservation of the trees on the bank of Nalla had been made after the auction had taken place. A mere reference to Exh.l is sufficient to show that the aforesaid assumption made by the High Court is wholly erroneous. Exh.l is a copy of the representation dated December 28, 1960 submitted by the plaintiff to the Divisional Forest officer (East), Bhopal. In paragraph 4 thereof, the plaintiff had stated as follows:"That the applicant inspected the coupe in or about the first week of November 1960 to give the coupe boundary certificate as is required under Clause 2 of the draft agreement deed. During this inspection the applicant was surprised to know that there were numerous irregularities committed in the marking of trees and huge area containing the Forest Produce marked for sale in the said coupe was subsequently reserved." (underlining supplied), the correct factual position is that the plaintiff had categorically complained to the Department that a substantial area containing the forest produce, which had all been originally marked for sale, had been subsequently reserved, with the result that the quantity of timber available for extraction had become substantially reduced, The criticism made by the High Court that the argument advanced by the plaintiff was the result of an, was therefore not justifiedWe may at this stage refer to Condition No. 3 in the sale notice (Exn. D/l) on which strong reliance was placed on behalf of the respondent. That condition reads:"The details of quantities of forest produce announced at the time of auction are correct to the best of the knowledge of the Divisional Forest officer but are not guaranteed to any extent The intending bidders are, therefore, advised to inspect on the spot the contract area and the produce they intend to bid for with a view to satisfy themselves about its correctness. No claim shall lie against the State Government for compensation or any other relief, if the details of the quantities are subsequently found to ben our opinion, the trial court was perfectly right in its view that, while the said condition will operate to prevent the Contractor from claiming any damages or compensation from the State Government on the ground that the details of the quantity of the forest produce were subsequently found to be incorrect, it will not preclude him from repudiating the contract on its being found that there was substantial variance between the particulars furnished at the time of the auction regarding the quantity and quality of timber that will be available for extraction in the concerned coupes and the quantity etc. Of tree growth actually found to be available on the site. It has been clearly established by the evidence in this case that a very substantial quantity of timber standing on the bank of Nalla had been marked for extraction and numbered and the auction sale had been held on the basis that the highest bid der would be entitled to fell and remove all those trees. But by the time the coupes were allowed to be inspected by the auctionpurchaser, that area was declared to be "reserved", with the result that there was a complete prohibition against th e felling of any timber therefrom. This has substantially altered the very foundation of the contract and hence it was perfectly open to the plaintiff to repudiate the contract and claim a refund of the amount deposited by him as a part payment of the purchase priceWe are unable to agree with the view expressed by the High A Court that "the plaintiff cannot succeed unless he proved that, even after excluding the trees standing on the reserved area, the rest of the forest did not have sufficient number of trees which would satisfy the assurance given at the time of the auction". The subject matter of the auction sale was the totality of the trees which were marked for cutting in the two coupes. Since a substantial number of the marked trees was contained in the area which was subsequently declared as "reserved", it is inevitable that there was a corresponding diminution in the total quantity of timber which was announced as available for cutting at the time of the auctione do not, therefore, find it possible to agree with the reasons stated by the High Court for refusing the plaintiffs prayer for refund of the amount paid by him by way of the first installment of the sale price . The conclusion recorded by the trial court on this issue was perfectly correct and the High Court was in error in interfering with the said findingWe notice, however, that a slight mistake has crept into the judgment and decree of the trial court, inasmuch as the amount of the first installment refund has been wrongly mentioned therein as Rs. 17, 500, whereas the amount actually paid by the plaintiff by way of the first installment was only Rs. l7, 250. A modification to this extent is, therefore, called for in the decree passed by the trial court. | 1 | 3,451 | 1,945 | ### Instruction:
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the trees standing on the bank of Nalla by stating as follows:"But there is nothing in the plaintiffs complaints to the Department at any stage alleging that this reservation had been made after the auction had taken place. The idea appears to be an after-thought. The mere oral statement of the plaintiff and his witnesses that this marking for reservation ha d taken place after the auction, on the basis that they did not see these markings about reservation of the trees near the Nalla when they had gone to that forest on earlier occasions, are wholly insufficient to come to the conclusion that the Nalla area had been reserved after the auction. The aforesaid reasoning is based entirely on the assumption that in one of the complaints preferred by the plaintiff before the Department officers, it had been alleged by h im, that the reservation of the trees on the bank of Nalla had been made after the auction had taken place. A mere reference to Exh. P-l is sufficient to show that the aforesaid assumption made by the High Court is wholly erroneous. Exh. P-l is a copy of the representation dated December 28, 1960 submitted by the plaintiff to the Divisional Forest officer (East), Bhopal. In paragraph 4 thereof, the plaintiff had stated as follows:"That the applicant inspected the coupe in or about the first week of November 1960 to give the coupe boundary certificate as is required under Clause 2 of the draft agreement deed. During this inspection the applicant was surprised to know that there were numerous irregularities committed in the marking of trees and huge area containing the Forest Produce marked for sale in the said coupe was subsequently reserved." (underlining supplied) Thus, the correct factual position is that the plaintiff had categorically complained to the Department that a substantial area containing the forest produce, which had all been originally marked for sale, had been subsequently reserved, with the result that the quantity of timber available for extraction had become substantially reduced, The criticism made by the High Court that the argument advanced by the plaintiff was the result of an after-thought, was therefore not justified. 9. We may at this stage refer to Condition No. 3 in the sale notice (Exn. D/l) on which strong reliance was placed on behalf of the respondent. That condition reads:"The details of quantities of forest produce announced at the time of auction are correct to the best of the knowledge of the Divisional Forest officer but are not guaranteed to any extent The intending bidders are, therefore, advised to inspect on the spot the contract area and the produce they intend to bid for with a view to satisfy themselves about its correctness. No claim shall lie against the State Government for compensation or any other relief, if the details of the quantities are subsequently found to be incorrect". In our opinion, the trial court was perfectly right in its view that, while the said condition will operate to prevent the Contractor from claiming any damages or compensation from the State Government on the ground that the details of the quantity of the forest produce were subsequently found to be incorrect, it will not preclude him from repudiating the contract on its being found that there was substantial variance between the particulars furnished at the time of the auction regarding the quantity and quality of timber that will be available for extraction in the concerned coupes and the quantity etc. Of tree growth actually found to be available on the site. It has been clearly established by the evidence in this case that a very substantial quantity of timber standing on the bank of Nalla had been marked for extraction and numbered and the auction sale had been held on the basis that the highest bid der would be entitled to fell and remove all those trees. But by the time the coupes were allowed to be inspected by the auction- purchaser, that area was declared to be "reserved", with the result that there was a complete prohibition against th e felling of any timber therefrom. This has substantially altered the very foundation of the contract and hence it was perfectly open to the plaintiff to repudiate the contract and claim a refund of the amount deposited by him as a part payment of the purchase price. 10. We are unable to agree with the view expressed by the High A Court that "the plaintiff cannot succeed unless he proved that, even after excluding the trees standing on the reserved area, the rest of the forest did not have sufficient number of trees which would satisfy the assurance given at the time of the auction". The subject matter of the auction sale was the totality of the trees which were marked for cutting in the two coupes. Since a substantial number of the marked trees was contained in the area which was subsequently declared as "reserved", it is inevitable that there was a corresponding diminution in the total quantity of timber which was announced as available for cutting at the time of the auction sale. 11. We do not, therefore, find it possible to agree with the reasons stated by the High Court for refusing the plaintiffs prayer for refund of the amount paid by him by way of the first installment of the sale price . The conclusion recorded by the trial court on this issue was perfectly correct and the High Court was in error in interfering with the said finding. 12. We notice, however, that a slight mistake has crept into the judgment and decree of the trial court, inasmuch as the amount of the first installment refund has been wrongly mentioned therein as Rs. 17, 500, whereas the amount actually paid by the plaintiff by way of the first installment was only Rs. l7, 250. A modification to this extent is, therefore, called for in the decree passed by the trial court. 13.
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out in the A evidence, the High Court summarily rejected the plaintiffs contention based on the factum of reservation of the trees standing on the bank of Nalla by stating as follows:"But there is nothing in the plaintiffs complaints to the Department at any stage alleging that this reservation had been made after the auction had taken place. The idea appears to be an. The mere oral statement of the plaintiff and his witnesses that this marking for reservation ha d taken place after the auction, on the basis that they did not see these markings about reservation of the trees near the Nalla when they had gone to that forest on earlier occasions, are wholly insufficient to come to the conclusion that the Nalla area had been reserved after thee aforesaid reasoning is based entirely on the assumption that in one of the complaints preferred by the plaintiff before the Department officers, it had been alleged by h im, that the reservation of the trees on the bank of Nalla had been made after the auction had taken place. A mere reference to Exh.l is sufficient to show that the aforesaid assumption made by the High Court is wholly erroneous. Exh.l is a copy of the representation dated December 28, 1960 submitted by the plaintiff to the Divisional Forest officer (East), Bhopal. In paragraph 4 thereof, the plaintiff had stated as follows:"That the applicant inspected the coupe in or about the first week of November 1960 to give the coupe boundary certificate as is required under Clause 2 of the draft agreement deed. During this inspection the applicant was surprised to know that there were numerous irregularities committed in the marking of trees and huge area containing the Forest Produce marked for sale in the said coupe was subsequently reserved." (underlining supplied), the correct factual position is that the plaintiff had categorically complained to the Department that a substantial area containing the forest produce, which had all been originally marked for sale, had been subsequently reserved, with the result that the quantity of timber available for extraction had become substantially reduced, The criticism made by the High Court that the argument advanced by the plaintiff was the result of an, was therefore not justifiedWe may at this stage refer to Condition No. 3 in the sale notice (Exn. D/l) on which strong reliance was placed on behalf of the respondent. That condition reads:"The details of quantities of forest produce announced at the time of auction are correct to the best of the knowledge of the Divisional Forest officer but are not guaranteed to any extent The intending bidders are, therefore, advised to inspect on the spot the contract area and the produce they intend to bid for with a view to satisfy themselves about its correctness. No claim shall lie against the State Government for compensation or any other relief, if the details of the quantities are subsequently found to ben our opinion, the trial court was perfectly right in its view that, while the said condition will operate to prevent the Contractor from claiming any damages or compensation from the State Government on the ground that the details of the quantity of the forest produce were subsequently found to be incorrect, it will not preclude him from repudiating the contract on its being found that there was substantial variance between the particulars furnished at the time of the auction regarding the quantity and quality of timber that will be available for extraction in the concerned coupes and the quantity etc. Of tree growth actually found to be available on the site. It has been clearly established by the evidence in this case that a very substantial quantity of timber standing on the bank of Nalla had been marked for extraction and numbered and the auction sale had been held on the basis that the highest bid der would be entitled to fell and remove all those trees. But by the time the coupes were allowed to be inspected by the auctionpurchaser, that area was declared to be "reserved", with the result that there was a complete prohibition against th e felling of any timber therefrom. This has substantially altered the very foundation of the contract and hence it was perfectly open to the plaintiff to repudiate the contract and claim a refund of the amount deposited by him as a part payment of the purchase priceWe are unable to agree with the view expressed by the High A Court that "the plaintiff cannot succeed unless he proved that, even after excluding the trees standing on the reserved area, the rest of the forest did not have sufficient number of trees which would satisfy the assurance given at the time of the auction". The subject matter of the auction sale was the totality of the trees which were marked for cutting in the two coupes. Since a substantial number of the marked trees was contained in the area which was subsequently declared as "reserved", it is inevitable that there was a corresponding diminution in the total quantity of timber which was announced as available for cutting at the time of the auctione do not, therefore, find it possible to agree with the reasons stated by the High Court for refusing the plaintiffs prayer for refund of the amount paid by him by way of the first installment of the sale price . The conclusion recorded by the trial court on this issue was perfectly correct and the High Court was in error in interfering with the said findingWe notice, however, that a slight mistake has crept into the judgment and decree of the trial court, inasmuch as the amount of the first installment refund has been wrongly mentioned therein as Rs. 17, 500, whereas the amount actually paid by the plaintiff by way of the first installment was only Rs. l7, 250. A modification to this extent is, therefore, called for in the decree passed by the trial court.
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Firdaus Vs. Oriental Insurance Co. Ltd. | a position to pay compensation or damages to the injured or to the dependants of the deceased and in that event the claimants could not get the damages. To meet such a situation, various legislations were enacted in England. For the first time, Third Parties (Rights Against Insurers) Act, 1930 was enacted, the provisions of which find place in Section 97 of the Act which gave to third party right to sue directly against the insurer. Subsequently, the Road Traffic Act, 1930 was enacted which provided for compulsory insurance of motor vehicles. The provisions of the said Act was engrafted in Section 95 of the Act. Under Section 38 of English Act, 1930, certain conditions of insurance policy were made ineffective so far as the third parties were concerned. The object behind the aforesaid legislation was that third party right should not suffer on account of failure to comply with those terms of the insurance policy. Section 94 of the Act gives protection to third party in respect of death or bodily injury or damage to the property while using the vehicle in public place and, therefore, the insurance of vehicle had been made compulsory under Section 94 read with Section 95 of the Act.4. A perusal of Sections 94 and 95 would further show that the said provisions do not make compulsory insurance to the vehicle or to the owners. Thus, it is manifest that compulsory insurance is for the benefit of third parties. The scheme of the Act shows that an insurance policy can cover three kinds of risk, i.e. owner of the vehicle; property (vehicle) and third party. The liability of the owner to have compulsory insurance is only in regard to the third party and not to the property. Section 95(5) of the Act runs as follows:"95. (5) Notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of person specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of person."5. The aforesaid provision shows that it was intended to cover two legal objectives. Firstly, that no one who was not a party to a contract would bring an action on a contract; and secondly, that a person who has no interest in the subject matter of an insurance can claim the benefit of an insurance. Thus, once the vehicle is insured, the owner as well as any other person can use the vehicle with the consent of the owner. Section 94 does not provide that any person who will use the vehicle shall insure the vehicle in respect of his separate use.6. On an analysis of Section 94 and 95, we further find that there are two third parties when a vehicle is transferred by the owner to a purchaser. The purchaser is one of the third parties to the contract and other third party is for whose benefit the vehicle was insured. So far, the transferee who is the third party in the contract, cannot get any personal benefit under the policy unless there is a compliance of the provisions of the Act. However, so far as third party injured or victim is concerned, he can enforce liability undertaken by the insurer.7. For the aforesaid reasons, we hold that whenever a vehicle which is covered by the insurance policy is transferred to a transferee, the liability of insurer does not cease so far as the third party/victim is concerned, even if the owner or purchaser does not give any intimation as required under the provisions of the Act. 14. In Rikhi Ram Case (Supra), although this Court considered the provisions of Motor Vehicles Act, 1939, but the Motor Vehicles Act, 1988 also contains the similar provisions under Section 146, 147 and 157 of the Act. Hence, the ratio of judgment in Rikhi Ram case is fully applicable in the facts of the present case also. 15. Section 157 of the Motor Vehicles Act, 1988 clinches the issue. Section 157 sub-section(1) contains the deeming provision that "the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of this transfer." Sub-section(1), Section 157 which is relevant is quoted as below: " 157. Transfer of certificate of insurance - (1) Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer.[Explanation.- For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance]." 16. In view of the above, it is not necessary for us to give any concluded finding regarding ownership of the vehicle No.HR 2 G 1875 on the date of accident for the purpose of this case. In either of the eventuality, i.e. whether defendant no.1 was the owner of the vehicle on the date of the accident, or defendant no.4 was the owner of the vehicle, the liability of Oriental Insurance Co. Ltd. continues and Workmen compensation Commissioner has rightly fastened the liability on the Insurance Company. The remand made by the High court to find out as to whether Parvez Khan was an employee of the defendant no.1 or not, was unnecessary.17. We are thus of the opinion that the High court committed an error in setting aside the order of Workmen Compensation Commissioner. | 1[ds]There is no dispute that defendant no.1 was the owner of the vehicle who got it insured with the Oriental Insurance Co. Ltd. The Workmen Compensation Commissioner has also observed that defendant no.1 failed to produce the Registration Certificate of the vehicle and since the name of defendant no.1 is in the insurance policy as owner of the vehicle, which points out that the vehicle is in the name of defendant no.1 till date. Before the High Court also, no material has been placed on the record which proved that vehicle stood in the name of defendant no.4. The Workmen Compensation Commissioner had come to the conclusion that defendant no.1 still continues to the owner of the vehicle and defendant No.4 has only looking after the vehicle. The High court having not returned any finding that vehicle was transferred to defendant no.4, ought not to have set aside the award of the Workmen Compensation Commissioner. The reliance on the mere submission of the claimant that his son was an employee of Mohd. Anisdefendant no.4 has no significance. Abdul Khalid the claimant was not the person who has knowledge of ownership of the truck except what he was told by his deceased son. When the Registration Certificate of the vehicle was not produced by defendant no.1 the High court ought to have drawn the adverse inference which was drawn by Workmen Compensation Commissioner against defendant no.1 regarding the ownership of the vehicle.13. Even if it is assumed for the sake of arguments that vehicle was transferred from defendant no.1 to defendant no.4, there will be no consequence with regard to liability of Oriental Insurance Co. Ltd. to pay compensation.In Rikhi Ram Case (Supra), although this Court considered the provisions of Motor Vehicles Act, 1939, but the Motor Vehicles Act, 1988 also contains the similar provisions under Section 146, 147 and 157 of the Act. Hence, the ratio of judgment in Rikhi Ram case is fully applicable in the facts of the present case also.In view of the above, it is not necessary for us to give any concluded finding regarding ownership of the vehicle No.HR 2 G 1875 on the date of accident for the purpose of this case. In either of the eventuality, i.e. whether defendant no.1 was the owner of the vehicle on the date of the accident, or defendant no.4 was the owner of the vehicle, the liability of Oriental Insurance Co. Ltd. continues and Workmen compensation Commissioner has rightly fastened the liability on the Insurance Company. The remand made by the High court to find out as to whether Parvez Khan was an employee of the defendant no.1 or not, was unnecessary.17. We are thus of the opinion that the High court committed an error in setting aside the order of Workmen Compensation Commissioner. | 1 | 2,933 | 503 | ### 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:
a position to pay compensation or damages to the injured or to the dependants of the deceased and in that event the claimants could not get the damages. To meet such a situation, various legislations were enacted in England. For the first time, Third Parties (Rights Against Insurers) Act, 1930 was enacted, the provisions of which find place in Section 97 of the Act which gave to third party right to sue directly against the insurer. Subsequently, the Road Traffic Act, 1930 was enacted which provided for compulsory insurance of motor vehicles. The provisions of the said Act was engrafted in Section 95 of the Act. Under Section 38 of English Act, 1930, certain conditions of insurance policy were made ineffective so far as the third parties were concerned. The object behind the aforesaid legislation was that third party right should not suffer on account of failure to comply with those terms of the insurance policy. Section 94 of the Act gives protection to third party in respect of death or bodily injury or damage to the property while using the vehicle in public place and, therefore, the insurance of vehicle had been made compulsory under Section 94 read with Section 95 of the Act.4. A perusal of Sections 94 and 95 would further show that the said provisions do not make compulsory insurance to the vehicle or to the owners. Thus, it is manifest that compulsory insurance is for the benefit of third parties. The scheme of the Act shows that an insurance policy can cover three kinds of risk, i.e. owner of the vehicle; property (vehicle) and third party. The liability of the owner to have compulsory insurance is only in regard to the third party and not to the property. Section 95(5) of the Act runs as follows:"95. (5) Notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of person specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of person."5. The aforesaid provision shows that it was intended to cover two legal objectives. Firstly, that no one who was not a party to a contract would bring an action on a contract; and secondly, that a person who has no interest in the subject matter of an insurance can claim the benefit of an insurance. Thus, once the vehicle is insured, the owner as well as any other person can use the vehicle with the consent of the owner. Section 94 does not provide that any person who will use the vehicle shall insure the vehicle in respect of his separate use.6. On an analysis of Section 94 and 95, we further find that there are two third parties when a vehicle is transferred by the owner to a purchaser. The purchaser is one of the third parties to the contract and other third party is for whose benefit the vehicle was insured. So far, the transferee who is the third party in the contract, cannot get any personal benefit under the policy unless there is a compliance of the provisions of the Act. However, so far as third party injured or victim is concerned, he can enforce liability undertaken by the insurer.7. For the aforesaid reasons, we hold that whenever a vehicle which is covered by the insurance policy is transferred to a transferee, the liability of insurer does not cease so far as the third party/victim is concerned, even if the owner or purchaser does not give any intimation as required under the provisions of the Act. 14. In Rikhi Ram Case (Supra), although this Court considered the provisions of Motor Vehicles Act, 1939, but the Motor Vehicles Act, 1988 also contains the similar provisions under Section 146, 147 and 157 of the Act. Hence, the ratio of judgment in Rikhi Ram case is fully applicable in the facts of the present case also. 15. Section 157 of the Motor Vehicles Act, 1988 clinches the issue. Section 157 sub-section(1) contains the deeming provision that "the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of this transfer." Sub-section(1), Section 157 which is relevant is quoted as below: " 157. Transfer of certificate of insurance - (1) Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer.[Explanation.- For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance]." 16. In view of the above, it is not necessary for us to give any concluded finding regarding ownership of the vehicle No.HR 2 G 1875 on the date of accident for the purpose of this case. In either of the eventuality, i.e. whether defendant no.1 was the owner of the vehicle on the date of the accident, or defendant no.4 was the owner of the vehicle, the liability of Oriental Insurance Co. Ltd. continues and Workmen compensation Commissioner has rightly fastened the liability on the Insurance Company. The remand made by the High court to find out as to whether Parvez Khan was an employee of the defendant no.1 or not, was unnecessary.17. We are thus of the opinion that the High court committed an error in setting aside the order of Workmen Compensation Commissioner.
### Response:
1
### Explanation:
There is no dispute that defendant no.1 was the owner of the vehicle who got it insured with the Oriental Insurance Co. Ltd. The Workmen Compensation Commissioner has also observed that defendant no.1 failed to produce the Registration Certificate of the vehicle and since the name of defendant no.1 is in the insurance policy as owner of the vehicle, which points out that the vehicle is in the name of defendant no.1 till date. Before the High Court also, no material has been placed on the record which proved that vehicle stood in the name of defendant no.4. The Workmen Compensation Commissioner had come to the conclusion that defendant no.1 still continues to the owner of the vehicle and defendant No.4 has only looking after the vehicle. The High court having not returned any finding that vehicle was transferred to defendant no.4, ought not to have set aside the award of the Workmen Compensation Commissioner. The reliance on the mere submission of the claimant that his son was an employee of Mohd. Anisdefendant no.4 has no significance. Abdul Khalid the claimant was not the person who has knowledge of ownership of the truck except what he was told by his deceased son. When the Registration Certificate of the vehicle was not produced by defendant no.1 the High court ought to have drawn the adverse inference which was drawn by Workmen Compensation Commissioner against defendant no.1 regarding the ownership of the vehicle.13. Even if it is assumed for the sake of arguments that vehicle was transferred from defendant no.1 to defendant no.4, there will be no consequence with regard to liability of Oriental Insurance Co. Ltd. to pay compensation.In Rikhi Ram Case (Supra), although this Court considered the provisions of Motor Vehicles Act, 1939, but the Motor Vehicles Act, 1988 also contains the similar provisions under Section 146, 147 and 157 of the Act. Hence, the ratio of judgment in Rikhi Ram case is fully applicable in the facts of the present case also.In view of the above, it is not necessary for us to give any concluded finding regarding ownership of the vehicle No.HR 2 G 1875 on the date of accident for the purpose of this case. In either of the eventuality, i.e. whether defendant no.1 was the owner of the vehicle on the date of the accident, or defendant no.4 was the owner of the vehicle, the liability of Oriental Insurance Co. Ltd. continues and Workmen compensation Commissioner has rightly fastened the liability on the Insurance Company. The remand made by the High court to find out as to whether Parvez Khan was an employee of the defendant no.1 or not, was unnecessary.17. We are thus of the opinion that the High court committed an error in setting aside the order of Workmen Compensation Commissioner.
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A. Jayachandra Vs. Aneel Kaur | 14. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each others fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hyper-sensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court. (See Dastane vs. Dastane, AIR 1975 SC 1534 ). 15. On reading of judgments of the trial Court and the High Court one thing is clear. While the trial Court analysed the evidence in great detail and found that the accepted stand of the respondent-wife regarding her behavior and conduct caused mental agony and amounted to mental cruelty, the High Court did not discuss the evidence at all. On the specious ground that witnesses from the hospital were not examined and, therefore, adverse inference was to be drawn. There was not even any discussion as to how the evidence led was insufficient to establish mental cruelty. The High Courts view that if at all it was a fact that respondent was using abusive language and making allegations of adultery with nursing staff, some witnesses from the hospital were necessary to be examined is clearly indefensible. That alone should not have been made the determinative factor to discard evidence on record. On that ground alone the judgment of the High Court is vulnerable. The evidence as led and which is practically undisputed is that the respondent had asked the husband to do certain things which cannot be termed to be a simple advice for proper behaviour. For example in her evidence respondent clearly accepted that she had said five things to be followed by him. Surprisingly, most of them related to ladies working in the hospital. Though respondent tried to show that they were simple and harmless advice, yet on a bare reading thereof it is clear that there were clear manifestations of her suspecting the husbands fidelity, character and reputation. By way of illustration, it may be indicated that the first so called advice was not to ask certain female staff members to come and work on off-duty hours when nobody else was available in the hospital. Second was not to work behind the closed doors with certain members of the staff. Contrary to what she had stated about having full faith in her husband the so called advices were nothing but casting doubt on the reputation, character and fidelity of her husband. Constant nagging on those aspects, certainly amounted to causing indelible mental agony and amounts to cruelty. The respondent was not an ordinary woman. She was a doctor in the hospital and knew the importance of the nature of duty and the necessity of members of the staff working even during off hours and the working conditions. There was another instance which was specifically dealt with by the trial Court. Same related to the alleged extra marital relationships of the appellant with another married lady who was wife of his friend. Though the respondent tried to explain that she was not responsible for making any such aspersions, the inevitable conclusion is to the contrary.16. The matter can be looked at from another angle. If acts subsequent to the filing of the divorce petition can be looked into to infer condonation of the aberrations, acts subsequent to the filing of the petition can be taken note of to show a pattern in the behaviour and conduct. In the instant case, after filing of the divorce petition a suit for injunction was filed, and the respondent went to the extent of seeking detention of the respondent. She filed a petition for maintenance which was also dismissed. Several caveat petitions were lodged and as noted above, with wrong address. The respondent in her evidence clearly accepted that she intended to proceed with the execution proceedings, and prayer for arrest till the divorce case was finalized. When the respondent gives priority to her profession over her husbands freedom it points unerringly at disharmony, diffusion and disintegration of marital unity, from which the Court can deduce about irretrievable breaking of marriage. 17. Several decisions, as noted above, cited by learned counsel for the respondent to contend even if marriage has broken down irretrievably decree of divorce cannot be passed. In all these cases it has been categorically held that in extreme cases the Court can direct dissolution of marriage on the ground that the marriage broken down irretrievably as is clear from paragraph 9 of Shiv Sunders case (supra). The factual position in each of the other cases is also distinguishable. It was held that long absence of physical company cannot be a ground for divorce if the same was on account of husbands conduct. In Shiv Sunders case (supra) it was noted that the husband was leading adulterous life and he cannot take advantage of his wife shunning his company. Though the High Court held by the impugned judgment that the said case was similar, it unfortunately failed to notice the relevant factual difference in the two cases. It is true that irretrievable breaking of marriage is not one of the statutory grounds on which Court can direct dissolution of marriage, this Court has with a view to do complete justice and shorten the agony of the parties engaged in long drawn legal battle, directed in those cases dissolution of marriage. But as noted in the said cases themselves those were exceptional cases. 18. | 1[ds]On reading of judgments of the trial Court and the High Court one thing is clear. While the trial Court analysed the evidence in great detail and found that the accepted stand of the respondent-wife regarding her behavior and conduct caused mental agony and amounted to mental cruelty, the High Court did not discuss the evidence at all. On the specious ground that witnesses from the hospital were not examined and, therefore, adverse inference was to be drawn. There was not even any discussion as to how the evidence led was insufficient to establish mental cruelty. The High Courts view that if at all it was a fact that respondent was using abusive language and making allegations of adultery with nursing staff, some witnesses from the hospital were necessary to be examined is clearly indefensible. That alone should not have been made the determinative factor to discard evidence on record. On that ground alone the judgment of the High Court is vulnerable. The evidence as led and which is practically undisputed is that the respondent had asked the husband to do certain things which cannot be termed to be a simple advice for proper behaviour. For example in her evidence respondent clearly accepted that she had said five things to be followed by him. Surprisingly, most of them related to ladies working in the hospital. Though respondent tried to show that they were simple and harmless advice, yet on a bare reading thereof it is clear that there were clear manifestations of her suspecting the husbands fidelity, character and reputation. By way of illustration, it may be indicated that the first so called advice was not to ask certain female staff members to come and work on off-duty hours when nobody else was available in the hospital. Second was not to work behind the closed doors with certain members of the staff. Contrary to what she had stated about having full faith in her husband the so called advices were nothing but casting doubt on the reputation, character and fidelity of her husband. Constant nagging on those aspects, certainly amounted to causing indelible mental agony and amounts to cruelty. The respondent was not an ordinary woman. She was a doctor in the hospital and knew the importance of the nature of duty and the necessity of members of the staff working even during off hours and the working conditions. There was another instance which was specifically dealt with by the trial Court. Same related to the alleged extra marital relationships of the appellant with another married lady who was wife of his friend. Though the respondent tried to explain that she was not responsible for making any such aspersions, the inevitable conclusion is to the contrary.16. The matter can be looked at from another angle. If acts subsequent to the filing of the divorce petition can be looked into to infer condonation of the aberrations, acts subsequent to the filing of the petition can be taken note of to show a pattern in the behaviour and conduct. In the instant case, after filing of the divorce petition a suit for injunction was filed, and the respondent went to the extent of seeking detention of the respondent. She filed a petition for maintenance which was also dismissed. Several caveat petitions were lodged and as noted above, with wrong address. The respondent in her evidence clearly accepted that she intended to proceed with the execution proceedings, and prayer for arrest till the divorce case was finalized. When the respondent gives priority to her profession over her husbands freedom it points unerringly at disharmony, diffusion and disintegration of marital unity, from which the Court can deduce about irretrievable breaking of marriage.Several decisions, as noted above, cited by learned counsel for the respondent to contend even if marriage has broken down irretrievably decree of divorce cannot be passed. In all these cases it has been categorically held that in extreme cases the Court can direct dissolution of marriage on the ground that the marriage broken down irretrievably as is clear from paragraph 9 of Shiv Sunders case (supra). The factual position in each of the other cases is also distinguishable. It was held that long absence of physical company cannot be a ground for divorce if the same was on account of husbands conduct. In Shiv Sunders case (supra) it was noted that the husband was leading adulterous life and he cannot take advantage of his wife shunning his company. Though the High Court held by the impugned judgment that the said case was similar, it unfortunately failed to notice the relevant factual difference in the two cases. It is true that irretrievable breaking of marriage is not one of the statutory grounds on which Court can direct dissolution of marriage, this Court has with a view to do complete justice and shorten the agony of the parties engaged in long drawn legal battle, directed in those cases dissolution of marriage. But as noted in the said cases themselves those were exceptional cases. | 1 | 3,653 | 908 | ### 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:
14. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each others fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hyper-sensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court. (See Dastane vs. Dastane, AIR 1975 SC 1534 ). 15. On reading of judgments of the trial Court and the High Court one thing is clear. While the trial Court analysed the evidence in great detail and found that the accepted stand of the respondent-wife regarding her behavior and conduct caused mental agony and amounted to mental cruelty, the High Court did not discuss the evidence at all. On the specious ground that witnesses from the hospital were not examined and, therefore, adverse inference was to be drawn. There was not even any discussion as to how the evidence led was insufficient to establish mental cruelty. The High Courts view that if at all it was a fact that respondent was using abusive language and making allegations of adultery with nursing staff, some witnesses from the hospital were necessary to be examined is clearly indefensible. That alone should not have been made the determinative factor to discard evidence on record. On that ground alone the judgment of the High Court is vulnerable. The evidence as led and which is practically undisputed is that the respondent had asked the husband to do certain things which cannot be termed to be a simple advice for proper behaviour. For example in her evidence respondent clearly accepted that she had said five things to be followed by him. Surprisingly, most of them related to ladies working in the hospital. Though respondent tried to show that they were simple and harmless advice, yet on a bare reading thereof it is clear that there were clear manifestations of her suspecting the husbands fidelity, character and reputation. By way of illustration, it may be indicated that the first so called advice was not to ask certain female staff members to come and work on off-duty hours when nobody else was available in the hospital. Second was not to work behind the closed doors with certain members of the staff. Contrary to what she had stated about having full faith in her husband the so called advices were nothing but casting doubt on the reputation, character and fidelity of her husband. Constant nagging on those aspects, certainly amounted to causing indelible mental agony and amounts to cruelty. The respondent was not an ordinary woman. She was a doctor in the hospital and knew the importance of the nature of duty and the necessity of members of the staff working even during off hours and the working conditions. There was another instance which was specifically dealt with by the trial Court. Same related to the alleged extra marital relationships of the appellant with another married lady who was wife of his friend. Though the respondent tried to explain that she was not responsible for making any such aspersions, the inevitable conclusion is to the contrary.16. The matter can be looked at from another angle. If acts subsequent to the filing of the divorce petition can be looked into to infer condonation of the aberrations, acts subsequent to the filing of the petition can be taken note of to show a pattern in the behaviour and conduct. In the instant case, after filing of the divorce petition a suit for injunction was filed, and the respondent went to the extent of seeking detention of the respondent. She filed a petition for maintenance which was also dismissed. Several caveat petitions were lodged and as noted above, with wrong address. The respondent in her evidence clearly accepted that she intended to proceed with the execution proceedings, and prayer for arrest till the divorce case was finalized. When the respondent gives priority to her profession over her husbands freedom it points unerringly at disharmony, diffusion and disintegration of marital unity, from which the Court can deduce about irretrievable breaking of marriage. 17. Several decisions, as noted above, cited by learned counsel for the respondent to contend even if marriage has broken down irretrievably decree of divorce cannot be passed. In all these cases it has been categorically held that in extreme cases the Court can direct dissolution of marriage on the ground that the marriage broken down irretrievably as is clear from paragraph 9 of Shiv Sunders case (supra). The factual position in each of the other cases is also distinguishable. It was held that long absence of physical company cannot be a ground for divorce if the same was on account of husbands conduct. In Shiv Sunders case (supra) it was noted that the husband was leading adulterous life and he cannot take advantage of his wife shunning his company. Though the High Court held by the impugned judgment that the said case was similar, it unfortunately failed to notice the relevant factual difference in the two cases. It is true that irretrievable breaking of marriage is not one of the statutory grounds on which Court can direct dissolution of marriage, this Court has with a view to do complete justice and shorten the agony of the parties engaged in long drawn legal battle, directed in those cases dissolution of marriage. But as noted in the said cases themselves those were exceptional cases. 18.
### Response:
1
### Explanation:
On reading of judgments of the trial Court and the High Court one thing is clear. While the trial Court analysed the evidence in great detail and found that the accepted stand of the respondent-wife regarding her behavior and conduct caused mental agony and amounted to mental cruelty, the High Court did not discuss the evidence at all. On the specious ground that witnesses from the hospital were not examined and, therefore, adverse inference was to be drawn. There was not even any discussion as to how the evidence led was insufficient to establish mental cruelty. The High Courts view that if at all it was a fact that respondent was using abusive language and making allegations of adultery with nursing staff, some witnesses from the hospital were necessary to be examined is clearly indefensible. That alone should not have been made the determinative factor to discard evidence on record. On that ground alone the judgment of the High Court is vulnerable. The evidence as led and which is practically undisputed is that the respondent had asked the husband to do certain things which cannot be termed to be a simple advice for proper behaviour. For example in her evidence respondent clearly accepted that she had said five things to be followed by him. Surprisingly, most of them related to ladies working in the hospital. Though respondent tried to show that they were simple and harmless advice, yet on a bare reading thereof it is clear that there were clear manifestations of her suspecting the husbands fidelity, character and reputation. By way of illustration, it may be indicated that the first so called advice was not to ask certain female staff members to come and work on off-duty hours when nobody else was available in the hospital. Second was not to work behind the closed doors with certain members of the staff. Contrary to what she had stated about having full faith in her husband the so called advices were nothing but casting doubt on the reputation, character and fidelity of her husband. Constant nagging on those aspects, certainly amounted to causing indelible mental agony and amounts to cruelty. The respondent was not an ordinary woman. She was a doctor in the hospital and knew the importance of the nature of duty and the necessity of members of the staff working even during off hours and the working conditions. There was another instance which was specifically dealt with by the trial Court. Same related to the alleged extra marital relationships of the appellant with another married lady who was wife of his friend. Though the respondent tried to explain that she was not responsible for making any such aspersions, the inevitable conclusion is to the contrary.16. The matter can be looked at from another angle. If acts subsequent to the filing of the divorce petition can be looked into to infer condonation of the aberrations, acts subsequent to the filing of the petition can be taken note of to show a pattern in the behaviour and conduct. In the instant case, after filing of the divorce petition a suit for injunction was filed, and the respondent went to the extent of seeking detention of the respondent. She filed a petition for maintenance which was also dismissed. Several caveat petitions were lodged and as noted above, with wrong address. The respondent in her evidence clearly accepted that she intended to proceed with the execution proceedings, and prayer for arrest till the divorce case was finalized. When the respondent gives priority to her profession over her husbands freedom it points unerringly at disharmony, diffusion and disintegration of marital unity, from which the Court can deduce about irretrievable breaking of marriage.Several decisions, as noted above, cited by learned counsel for the respondent to contend even if marriage has broken down irretrievably decree of divorce cannot be passed. In all these cases it has been categorically held that in extreme cases the Court can direct dissolution of marriage on the ground that the marriage broken down irretrievably as is clear from paragraph 9 of Shiv Sunders case (supra). The factual position in each of the other cases is also distinguishable. It was held that long absence of physical company cannot be a ground for divorce if the same was on account of husbands conduct. In Shiv Sunders case (supra) it was noted that the husband was leading adulterous life and he cannot take advantage of his wife shunning his company. Though the High Court held by the impugned judgment that the said case was similar, it unfortunately failed to notice the relevant factual difference in the two cases. It is true that irretrievable breaking of marriage is not one of the statutory grounds on which Court can direct dissolution of marriage, this Court has with a view to do complete justice and shorten the agony of the parties engaged in long drawn legal battle, directed in those cases dissolution of marriage. But as noted in the said cases themselves those were exceptional cases.
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M/s. Duro Felguera, S.A Vs. M/s. Gangavaram Port Limited | Mere reference to Original Package No.4 Tender Document in the sequence of priority of documents (as serial No.4) indicates that the documents Original Package No. 4 TD containing arbitration clause was not intended to be incorporated in its entirety but only to have clarity in priority of the documents in execution of the work. Be it noted that Original Package No.4 TD occurs as Serial No.4 in sequence, after three other documents viz..., "(i) Annexure 1 to the Letter of Award issued for Package No. 4 Contract; and (ii) Annexure III to the Letter of Award issued for Packages No. 4, 6, 7, 8 and 9 contracts; and (iii) Clarifications/Addendums No.1 to 4 (in the descending order) issued by the Employer to the Original Package No. 4 Tender Document." There are a number of contract agreements between the parties - GPL, Duro Felguera and FGI. It is pertinent to note that MoU dated 11.08.2012 itself does not contain an arbitration clause. When reference is made to the priority of documents to have clarity in execution of the work, such general reference to Original Package No.4 Tender Document will not be sufficient to hold that the arbitration clause 20.6 in the Original Package No.4 TD is incorporated in the MoU. 36. The submission of GPL is that since reference to Original Package No.4 TD is made in MoU, the arbitration clause is incorporated in the MoU and there has to be a composite reference for settling the disputes under different contracts by constitution of single arbitral tribunal for dealing with the international commercial arbitration. As discussed earlier, as per the amended provision of sub-section (6A) of Section 11, the power of the court is only to examine the existence of arbitration agreement. When there are five separate contracts each having independent existence with separate arbitration clauses that is New Package No.4 (with foreign company Duro Felguera) and Packages No. 6, 7, 8 and 9 [with Indian subsidiary (FGI)] based on MoU and Corporate Guarantee, there cannot be a single arbitral tribunal for "International Commercial Arbitration".37. It was submitted that if the request of GPL is accepted and all Packages are considered under the same reference, they shall be treated as international commercial arbitrations, then FGI may lose the opportunity of challenging the award under Section 34(2A) of the Act. In response to the above submission, GPL offered to concede and submitted that Section 34 (2A) of the Act may be invoked by Indian subsidiary-FGI, though Section 34(2A) is not applicable to international commercial arbitration. Such a concession is against the provisions and specific mandate of legislature and cannot be accepted. 38. The Corporate Guarantee dated 17.03.2012 was executed by the foreign company-Duro Felguera undertaking to compensate for the delay, damages to the GPL. Since the Corporate Guarantee was by the foreign company-Duro Felguera which contains separate arbitration clause, there has to be a separate arbitral tribunal for resolving the disputes arising out of the said Corporate Guarantee. 39. New Package No. 4 TD- F.O.B. Supply of Bulk Material Handling Equipments USD 26,666,932 has been awarded to the foreign company-Duro Felguera. Since Duro Felguera is a foreign company, in so far as the contract awarded to Duro Felguera i.e. New Package No.4 and the dispute arising out of the Corporate Guarantee executed by the foreign company-Duro Felguera is concerned, the arbitral tribunal has to be for the international commercial arbitration. 40. The learned Senior Counsel for GPL relied upon Chloro Controls India Private Ltd. (supra), to contend that where various agreements constitute a composite transaction, court can refer disputes to arbitration if all ancillary agreements are relatable to principal agreement and performance of one agreement is so intrinsically interlinked with other agreements. Even though Chloro Controls has considered the doctrine of "composite reference", "composite performance" etc., ratio of Chloro Controls may not be applicable to the case in hand. In Chloro Controls, the arbitration clause in the principal agreement i.e. clause (30) required that any dispute or difference arising under or in connection with the principal (mother) agreement, which could not be settled by friendly negotiation and agreement between the parties, would be finally settled by arbitration conducted in accordance with Rules of ICC. The words thereon "under and in connection with" in the principal agreement was very wide to make it more comprehensive. In that background, the performance of all other agreements by respective parties including third parties/non-signatories had to fall in line with the principal agreement. In such factual background, it was held that all agreements pertaining to the entire disputes are to be settled by a "composite reference". The case in hand stands entirely on different footing. As discussed earlier, all five different Packages as well as the Corporate Guarantee have separate arbitration clauses and they do not depend on the terms and conditions of the Original Package No.4 TD nor on the MoU, which is intended to have clarity in execution of the work. 41. Duro Felguera being a foreign company, for each of the disputes arising under New Package No.4 and Corporate Guarantee, International Commercial Arbitration Tribunal are to be constituted. M/s. Duro Felguera has nominated Mr. Justice D.R. Deshmukh (Former Judge of Chhattisgarh High Court) as their arbitrator. Gangavaram Port Limited (GPL) has nominated Mr. Justice M.N. Rao (Former Chief Justice of Himachal Pradesh High Court). Alongwith the above two arbitrators Mr. Justice R.M. Lodha, Former Chief Justice of India is appointed as the Presiding Arbitrator of the International Commercial Arbitral Tribunal.42. Package No.6 (Rs.208,66,53,657/-); Package No.7 (Rs.59,14,65,706/-); Package No.8 (Rs.9,94,38,635/-); and Package No.9 (Rs.29,52,85, 558/-) have been awarded to the Indian company-FGI. Since the issues arising between the parties are inter-related, the same arbitral tribunal, Justice R.M. Lodha, Former Chief Justice of India, Justice D.R. Deshmukh, Former Judge of Chhattisgarh High Court and Justice M. N. Rao, Former Chief Justice of Himachal Pradesh High Court, shall separately constitute Domestic Arbitral Tribunals for resolving each of the disputes pertaining to Packages No.6, 7, 8 and 9. | 1[ds]19. There is no dispute between the parties that the issue at hand is governed by the amended provision of(6A) of Section 11. Even though Letters of Award are dated 17.03.2012 and five separate contracts were entered into between the parties on 10.05.2012, the dispute arose between the parties in 2016 as pointed out earlier, Gangavaram Port Limited invoked the Bank Guarantee on 07.01.2016 and M/s. Duro Felguera and its Indianissued notice of dissatisfaction on 04.02.2016 and 07.02.2016 respectively to Gangavaram Port Limited. M/s. Duro Felguera issued arbitration notice on 05.04.2016 for contract relating to Package No. 4 and FGI issued four arbitration notices dated 07.04.2016 for contracts relating to Packages No. 6 to 9. Gangavaram Port Limited also issued an arbitration notice on 13.04.2016. Since the dispute between the parties arose in 2016, the amended provision of(6A) of Section 11 shall govern the issue, as per which the power of the Court is confined only to examine theclauses as to the priority of the documents was incorporated in all other contractNo. 6, 7, 8 and 9 awarded to Indian subsidiary FGI. In the sequence of documents of clause (2) of the contract agreement quoted above, the Tender Document is mentioned in the sequence only as (g) and all other documents or the other documents like Letters of Award, Special conditions of contract etc. have priority over the same. While so, the terms contained in Original Package No. 4 TD including the arbitration clause cannot have priority over the Special Conditions of contract of thecontracts. When the Original Package No. 4 TD has beeninto five different Packages, GPL is not right in contending that inspite ofof the work, the Original Package No.4 TD collectively covered all the five Packages. After the Original Package No. 4 was split into five different contracts, the parties cannot go back to the Original Package No.4 nor can they merge them into one. We do not find merit in the submissions of GPL that20.6 of the Original Package No. 4 TD will still collectively cover all the five Packages to justify constitution of single Arbitral Tribunal.25. The foreignFelguera had executed a Corporate Guarantee dated 17.03.2012 guaranteeing the due performance of all the works awarded to Duro Felguera and FGI. The Corporate Guarantee itself has its own separate and distinct arbitration clause.As per the terms of Corporate Guarantee, it shall cease on issuance of the performance certificate under all the contracts. Of course, Duro Felguera has given the Corporate Guarantee for all the five contracts viz., New Package No.4, Packages No. 6 to 9. Corporate Guarantee executed by Duro Felguera dated 17.03.2012 also recognizes the split up of the original Package No. 4 Tender Document. As per the terms of the Corporate Guarantee, it is to be invoked only if breach is established in one of the five contracts. Since the Corporate Guarantee by itself has a separate arbitration clause, it cannot be contended that by virtue of the Corporate Guarantee executed by Duro Felguera, there has to be a composite reference of International Commercial Arbitration which would cover all the five Packages. The Corporate Guarantee by Duro Felguera cannot supersede the fivecontracts and the special conditions of contractquestion whether or not the arbitration clause contained in another document, is incorporated in the contract, is always a question of construction of document in reference to intention of the parties. The terms of a contract may have to be ascertained by reference to more than one document.Considering the MoU, in light of the above ratio, as pointed out earlier, in the MoU, Original Package No.4 Tender Document is merely referred only to have more clarity on technical and execution related matters and the parties agreed that the works shall be carried out as per the priority of the documents indicated thereon. Mere reference to Original Package No.4 Tender Document in the sequence of priority of documents (as serial No.4) indicates that the documents Original Package No. 4 TD containing arbitration clause was not intended to be incorporated in its entirety but only to have clarity in priority of the documents in execution of theare a number of contract agreements between the partiesGPL, Duro Felguera and FGI. It is pertinent to note that MoU dated 11.08.2012 itself does not contain an arbitration clause. When reference is made to the priority of documents to have clarity in execution of the work, such general reference to Original Package No.4 Tender Document will not be sufficient to hold that the arbitration clause 20.6 in the Original Package No.4 TD is incorporated in the MoU.The Corporate Guarantee dated 17.03.2012 was executed by the foreignFelguera undertaking to compensate for the delay, damages to the GPL. Since the Corporate Guarantee was by the foreignF.O.B. Supply of Bulk Material Handling Equipments USD 26,666,932 has been awarded to the foreignFelguera. Since Duro Felguera is a foreign company, in so far as the contract awarded to Duro Felguera i.e. New Package No.4 and the dispute arising out of the Corporate Guarantee executed by the foreignFelguera is concerned, the arbitral tribunal has to be for the international commercialdiscussed earlier, all five different Packages as well as the Corporate Guarantee have separate arbitration clauses and they do not depend on the terms and conditions of the Original Package No.4 TD nor on the MoU, which is intended to have clarity in execution of the work.Duro Felguera being a foreign company, for each of the disputes arising under New Package No.4 and Corporate Guarantee, International Commercial Arbitration Tribunal are to be constituted. M/s. Duro Felguera has nominated Mr. Justice D.R. Deshmukh (Former Judge of Chhattisgarh High Court) as their arbitrator. Gangavaram Port Limited (GPL) has nominated Mr. Justice M.N. Rao (Former Chief Justice of Himachal Pradesh High Court). Alongwith the above two arbitrators Mr. Justice R.M. Lodha, Former Chief Justice of India is appointed as the Presiding Arbitrator of the International Commercial Arbitral Tribunal.42. Package No.6Package No.8and Package No.9 (Rs.29,52,85,have been awarded to the IndianSince the issues arising between the parties arethe same arbitral tribunal, Justice R.M. Lodha, Former Chief Justice of India, Justice D.R. Deshmukh, Former Judge of Chhattisgarh High Court and Justice M. N. Rao, Former Chief Justice of Himachal Pradesh High Court, shall separately constitute Domestic Arbitral Tribunals for resolving each of the disputes pertaining to Packages No.6, 7, 8 and 9. | 1 | 10,640 | 1,176 | ### 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:
Mere reference to Original Package No.4 Tender Document in the sequence of priority of documents (as serial No.4) indicates that the documents Original Package No. 4 TD containing arbitration clause was not intended to be incorporated in its entirety but only to have clarity in priority of the documents in execution of the work. Be it noted that Original Package No.4 TD occurs as Serial No.4 in sequence, after three other documents viz..., "(i) Annexure 1 to the Letter of Award issued for Package No. 4 Contract; and (ii) Annexure III to the Letter of Award issued for Packages No. 4, 6, 7, 8 and 9 contracts; and (iii) Clarifications/Addendums No.1 to 4 (in the descending order) issued by the Employer to the Original Package No. 4 Tender Document." There are a number of contract agreements between the parties - GPL, Duro Felguera and FGI. It is pertinent to note that MoU dated 11.08.2012 itself does not contain an arbitration clause. When reference is made to the priority of documents to have clarity in execution of the work, such general reference to Original Package No.4 Tender Document will not be sufficient to hold that the arbitration clause 20.6 in the Original Package No.4 TD is incorporated in the MoU. 36. The submission of GPL is that since reference to Original Package No.4 TD is made in MoU, the arbitration clause is incorporated in the MoU and there has to be a composite reference for settling the disputes under different contracts by constitution of single arbitral tribunal for dealing with the international commercial arbitration. As discussed earlier, as per the amended provision of sub-section (6A) of Section 11, the power of the court is only to examine the existence of arbitration agreement. When there are five separate contracts each having independent existence with separate arbitration clauses that is New Package No.4 (with foreign company Duro Felguera) and Packages No. 6, 7, 8 and 9 [with Indian subsidiary (FGI)] based on MoU and Corporate Guarantee, there cannot be a single arbitral tribunal for "International Commercial Arbitration".37. It was submitted that if the request of GPL is accepted and all Packages are considered under the same reference, they shall be treated as international commercial arbitrations, then FGI may lose the opportunity of challenging the award under Section 34(2A) of the Act. In response to the above submission, GPL offered to concede and submitted that Section 34 (2A) of the Act may be invoked by Indian subsidiary-FGI, though Section 34(2A) is not applicable to international commercial arbitration. Such a concession is against the provisions and specific mandate of legislature and cannot be accepted. 38. The Corporate Guarantee dated 17.03.2012 was executed by the foreign company-Duro Felguera undertaking to compensate for the delay, damages to the GPL. Since the Corporate Guarantee was by the foreign company-Duro Felguera which contains separate arbitration clause, there has to be a separate arbitral tribunal for resolving the disputes arising out of the said Corporate Guarantee. 39. New Package No. 4 TD- F.O.B. Supply of Bulk Material Handling Equipments USD 26,666,932 has been awarded to the foreign company-Duro Felguera. Since Duro Felguera is a foreign company, in so far as the contract awarded to Duro Felguera i.e. New Package No.4 and the dispute arising out of the Corporate Guarantee executed by the foreign company-Duro Felguera is concerned, the arbitral tribunal has to be for the international commercial arbitration. 40. The learned Senior Counsel for GPL relied upon Chloro Controls India Private Ltd. (supra), to contend that where various agreements constitute a composite transaction, court can refer disputes to arbitration if all ancillary agreements are relatable to principal agreement and performance of one agreement is so intrinsically interlinked with other agreements. Even though Chloro Controls has considered the doctrine of "composite reference", "composite performance" etc., ratio of Chloro Controls may not be applicable to the case in hand. In Chloro Controls, the arbitration clause in the principal agreement i.e. clause (30) required that any dispute or difference arising under or in connection with the principal (mother) agreement, which could not be settled by friendly negotiation and agreement between the parties, would be finally settled by arbitration conducted in accordance with Rules of ICC. The words thereon "under and in connection with" in the principal agreement was very wide to make it more comprehensive. In that background, the performance of all other agreements by respective parties including third parties/non-signatories had to fall in line with the principal agreement. In such factual background, it was held that all agreements pertaining to the entire disputes are to be settled by a "composite reference". The case in hand stands entirely on different footing. As discussed earlier, all five different Packages as well as the Corporate Guarantee have separate arbitration clauses and they do not depend on the terms and conditions of the Original Package No.4 TD nor on the MoU, which is intended to have clarity in execution of the work. 41. Duro Felguera being a foreign company, for each of the disputes arising under New Package No.4 and Corporate Guarantee, International Commercial Arbitration Tribunal are to be constituted. M/s. Duro Felguera has nominated Mr. Justice D.R. Deshmukh (Former Judge of Chhattisgarh High Court) as their arbitrator. Gangavaram Port Limited (GPL) has nominated Mr. Justice M.N. Rao (Former Chief Justice of Himachal Pradesh High Court). Alongwith the above two arbitrators Mr. Justice R.M. Lodha, Former Chief Justice of India is appointed as the Presiding Arbitrator of the International Commercial Arbitral Tribunal.42. Package No.6 (Rs.208,66,53,657/-); Package No.7 (Rs.59,14,65,706/-); Package No.8 (Rs.9,94,38,635/-); and Package No.9 (Rs.29,52,85, 558/-) have been awarded to the Indian company-FGI. Since the issues arising between the parties are inter-related, the same arbitral tribunal, Justice R.M. Lodha, Former Chief Justice of India, Justice D.R. Deshmukh, Former Judge of Chhattisgarh High Court and Justice M. N. Rao, Former Chief Justice of Himachal Pradesh High Court, shall separately constitute Domestic Arbitral Tribunals for resolving each of the disputes pertaining to Packages No.6, 7, 8 and 9.
### Response:
1
### Explanation:
Gangavaram Port Limited invoked the Bank Guarantee on 07.01.2016 and M/s. Duro Felguera and its Indianissued notice of dissatisfaction on 04.02.2016 and 07.02.2016 respectively to Gangavaram Port Limited. M/s. Duro Felguera issued arbitration notice on 05.04.2016 for contract relating to Package No. 4 and FGI issued four arbitration notices dated 07.04.2016 for contracts relating to Packages No. 6 to 9. Gangavaram Port Limited also issued an arbitration notice on 13.04.2016. Since the dispute between the parties arose in 2016, the amended provision of(6A) of Section 11 shall govern the issue, as per which the power of the Court is confined only to examine theclauses as to the priority of the documents was incorporated in all other contractNo. 6, 7, 8 and 9 awarded to Indian subsidiary FGI. In the sequence of documents of clause (2) of the contract agreement quoted above, the Tender Document is mentioned in the sequence only as (g) and all other documents or the other documents like Letters of Award, Special conditions of contract etc. have priority over the same. While so, the terms contained in Original Package No. 4 TD including the arbitration clause cannot have priority over the Special Conditions of contract of thecontracts. When the Original Package No. 4 TD has beeninto five different Packages, GPL is not right in contending that inspite ofof the work, the Original Package No.4 TD collectively covered all the five Packages. After the Original Package No. 4 was split into five different contracts, the parties cannot go back to the Original Package No.4 nor can they merge them into one. We do not find merit in the submissions of GPL that20.6 of the Original Package No. 4 TD will still collectively cover all the five Packages to justify constitution of single Arbitral Tribunal.25. The foreignFelguera had executed a Corporate Guarantee dated 17.03.2012 guaranteeing the due performance of all the works awarded to Duro Felguera and FGI. The Corporate Guarantee itself has its own separate and distinct arbitration clause.As per the terms of Corporate Guarantee, it shall cease on issuance of the performance certificate under all the contracts. Of course, Duro Felguera has given the Corporate Guarantee for all the five contracts viz., New Package No.4, Packages No. 6 to 9. Corporate Guarantee executed by Duro Felguera dated 17.03.2012 also recognizes the split up of the original Package No. 4 Tender Document. As per the terms of the Corporate Guarantee, it is to be invoked only if breach is established in one of the five contracts. Since the Corporate Guarantee by itself has a separate arbitration clause, it cannot be contended that by virtue of the Corporate Guarantee executed by Duro Felguera, there has to be a composite reference of International Commercial Arbitration which would cover all the five Packages. The Corporate Guarantee by Duro Felguera cannot supersede the fivecontracts and the special conditions of contractquestion whether or not the arbitration clause contained in another document, is incorporated in the contract, is always a question of construction of document in reference to intention of the parties. The terms of a contract may have to be ascertained by reference to more than one document.Considering the MoU, in light of the above ratio, as pointed out earlier, in the MoU, Original Package No.4 Tender Document is merely referred only to have more clarity on technical and execution related matters and the parties agreed that the works shall be carried out as per the priority of the documents indicated thereon. Mere reference to Original Package No.4 Tender Document in the sequence of priority of documents (as serial No.4) indicates that the documents Original Package No. 4 TD containing arbitration clause was not intended to be incorporated in its entirety but only to have clarity in priority of the documents in execution of theare a number of contract agreements between the partiesGPL, Duro Felguera and FGI. It is pertinent to note that MoU dated 11.08.2012 itself does not contain an arbitration clause. When reference is made to the priority of documents to have clarity in execution of the work, such general reference to Original Package No.4 Tender Document will not be sufficient to hold that the arbitration clause 20.6 in the Original Package No.4 TD is incorporated in the MoU.The Corporate Guarantee dated 17.03.2012 was executed by the foreignFelguera undertaking to compensate for the delay, damages to the GPL. Since the Corporate Guarantee was by the foreignF.O.B. Supply of Bulk Material Handling Equipments USD 26,666,932 has been awarded to the foreignFelguera. Since Duro Felguera is a foreign company, in so far as the contract awarded to Duro Felguera i.e. New Package No.4 and the dispute arising out of the Corporate Guarantee executed by the foreignFelguera is concerned, the arbitral tribunal has to be for the international commercialdiscussed earlier, all five different Packages as well as the Corporate Guarantee have separate arbitration clauses and they do not depend on the terms and conditions of the Original Package No.4 TD nor on the MoU, which is intended to have clarity in execution of the work.Duro Felguera being a foreign company, for each of the disputes arising under New Package No.4 and Corporate Guarantee, International Commercial Arbitration Tribunal are to be constituted. M/s. Duro Felguera has nominated Mr. Justice D.R. Deshmukh (Former Judge of Chhattisgarh High Court) as their arbitrator. Gangavaram Port Limited (GPL) has nominated Mr. Justice M.N. Rao (Former Chief Justice of Himachal Pradesh High Court). Alongwith the above two arbitrators Mr. Justice R.M. Lodha, Former Chief Justice of India is appointed as the Presiding Arbitrator of the International Commercial Arbitral Tribunal.42. Package No.6Package No.8and Package No.9 (Rs.29,52,85,have been awarded to the IndianSince the issues arising between the parties arethe same arbitral tribunal, Justice R.M. Lodha, Former Chief Justice of India, Justice D.R. Deshmukh, Former Judge of Chhattisgarh High Court and Justice M. N. Rao, Former Chief Justice of Himachal Pradesh High Court, shall separately constitute Domestic Arbitral Tribunals for resolving each of the disputes pertaining to Packages No.6, 7, 8 and 9.
|
Posco-India Pune Processing Centre Private Limited Vs. M/S. Rojee-Tasha Stampings Private Limited & Others | an opportunity to consider a similar situation in respect of a company petition for winding up, and the Court held that the company cannot say that once the insurance company has paid the money to the principal creditor, then the company is not answerable to anybody. The company is still liable. The relevant part of the said judgment reads as under:In the present matter, it is to be seen that the loan was taken by the company somewhere in the year 1993 and the company which claims to be running profit making assetful company, did not discharge its liability within the statutory period despite the demand notice and the insurance company had to discharge the, Gujarat liability. The endeavour of Mr. Soparkar was to convince us that if the creditor company has already received 95 per cent of the loan amount and the insurance company has not lodged its claim against the appellant company, the court must not exercise its discretion in favour of the admission of the winding up matter. The argument is one of frustration. We are unable to understand the logic behind the said argument. It is not the case of the appellant that certain goods were insured and in lieu of the goods, the money has been paid by the insurance company to the principal creditor. In fact, the loan amount/loan transaction was insured. The Petitioner cannot say that once the insurance company has paid the money to the principal creditor, then the appellant company is not answerable to anybody. The appellant company is still liable and applying the principle of subrogation, the insurance company can always recover the money from the appellant and in any case, if the money is received by the creditor company then, to the extent of the receipts, the creditor company would refund the money to the insurance company. That would be a matter between the insurance company and the creditor company. The debtor is not entitled to take any benefits out of the said transaction.12. Therefore, as held by His Lordship Honble Shri Justice S.J.Kathawalla in Company Petition No. 294 of 2014 with whom I am in respectful concurrence, petitioner is indeed entitled to file the above company petitions against the company and the petitions as filed are maintainable in law. The only obligation that falls upon petitioner is in respect of receipt of sums from respondent which may be in excess of petitioners claim to which extent the insurance company would be entitled to seek recovery of such sums from petitioner. This, however, would be the subject matter of separate proceedings between the insurance company and petitioner and does not merit any further consideration at the stage of admission of this present Company Petition. The submissions that the claim under petition was not a debt and petitioner is not a creditor of the company but the claim is for damages and there was no ascertained liability which can be proved only in a Civil Court, in my view, is not tenable and requires to be rejected. There is no question of the claim being in respect of damages or being unascertained in any manner whatsoever. On the contrary, the amount claimed, I am satisfied, are admittedly ascertained and due and payable by the company to petitioner. There is no dispute in respect of the admitted outstanding of Rs.6,07,00,000/- payable by respondent.13. It should also be noted that respondent has, in fact, made a false statement in the affidavit in reply that it came to know only in July/August having received the insurance money. The email annexed at Exh.1 to the affidavit in reply is a forwarded CC from D. M Pawar of Ganage Group (email ID : [email protected]) sent to his advocate on 28th July 2015. The said D.M. Pawar has forwarded an email that he has received from one Sambhaji Shahapure on 28th July 2018 and from the email, it is seen that the said Mr. Shahapure has received the email from one Abhishek Aggarwal from Ksure on 14th June 2012 that Ksure has paid the insurance claim of petitioner. Despite being aware of the claim being settled by the insurance company, respondent-company submitted to the consent order dated 25th June 2014 and thereafter to come and told the Court by way of a consent order that respondent-company came to know only in July/August 2015 that insurance company Ksure has settled the claim of petitioner company, is ex-facie a false statement.The falsity of respondents case that it came to know in July/August 2015 is also belied by the fact that respondent had even sent an email dated 30th July 2014 to Ksure with copy to petitioner, print out of the said email is at Exh.B to the affidavit in rejoinder and that has not been denied by the company and therefore, it is quite obvious that they are making false statements.14. It should also be noted that respondent company did not even reply to the statutory notice that was sent by petitioner to respondent company. It is settled law that where no response to a statutory notice has been made, the court may pass a winding up order on the basis that amount claimed has not been denied by the company and there is a presumption of inability to pay by the company. Where no response has been made to the statutory notice, the respondent-company runs a risk of winding up petition being allowed. By virtue of Section 434 of the Companies Act 1956 a presumption of the indebtedness can be legitimately drawn by the court where no reply to the statutory notice is forthcoming.15. It should also be noted that in the affidavit in reply, there is not even a mention that the company is commercially solvent. On the contrary, there is an email dated 30th July 2014 (Exh.B) from respondent-company to petitioner and also to Abhishek Aggrawal of Ksure that the company has been declared as nonperforming Asset and its bank account has also been frozen. | 1[ds]12. Therefore, as held by His Lordship Honble Shri Justice S.J.Kathawalla in Company Petition No. 294 of 2014 with whom I am in respectful concurrence, petitioner is indeed entitled to file the above company petitions against the company and the petitions as filed are maintainable in law. The only obligation that falls upon petitioner is in respect of receipt of sums from respondent which may be in excess of petitioners claim to which extent the insurance company would be entitled to seek recovery of such sums from petitioner. This, however, would be the subject matter of separate proceedings between the insurance company and petitioner and does not merit any further consideration at the stage of admission of this present Company Petition. The submissions that the claim under petition was not a debt and petitioner is not a creditor of the company but the claim is for damages and there was no ascertained liability which can be proved only in a Civil Court, in my view, is not tenable and requires to be rejected. There is no question of the claim being in respect of damages or being unascertained in any manner whatsoever. On the contrary, the amount claimed, I am satisfied, are admittedly ascertained and due and payable by the company to petitioner. There is no dispute in respect of the admitted outstanding of Rs.6,07,00,000/payable by respondent.13. It should also be noted that respondent has, in fact, made a false statement in the affidavit in reply that it came to know only in July/August having received the insurance money. The email annexed at Exh.1 to the affidavit in reply is a forwarded CC from D. M Pawar of Ganage Group (email ID : [email protected]) sent to his advocate on 28th July 2015. The said D.M. Pawar has forwarded an email that he has received from one Sambhaji Shahapure on 28th July 2018 and from the email, it is seen that the said Mr. Shahapure has received the email from one Abhishek Aggarwal from Ksure on 14th June 2012 that Ksure has paid the insurance claim of petitioner. Despite being aware of the claim being settled by the insurance company,submitted to the consent order dated 25th June 2014 and thereafter to come and told the Court by way of a consent order thatcame to know only in July/August 2015 that insurance company Ksure has settled the claim of petitioner company, isa false statement.The falsity of respondents case that it came to know in July/August 2015 is also belied by the fact that respondent had even sent an email dated 30th July 2014 to Ksure with copy to petitioner, print out of the said email is at Exh.B to the affidavit in rejoinder and that has not been denied by the company and therefore, it is quite obvious that they are making false statements.14. It should also be noted that respondent company did not even reply to the statutory notice that was sent by petitioner to respondent company. It is settled law that where no response to a statutory notice has been made, the court may pass a winding up order on the basis that amount claimed has not been denied by the company and there is a presumption of inability to pay by the company. Where no response has been made to the statutory notice, theruns a risk of winding up petition being allowed. By virtue of Section 434 of the Companies Act 1956 a presumption of the indebtedness can be legitimately drawn by the court where no reply to the statutory notice is forthcoming.15. It should also be noted that in the affidavit in reply, there is not even a mention that the company is commercially solvent. On the contrary, there is an email dated 30th July 2014 (Exh.B) fromto petitioner and also to Abhishek Aggrawal of Ksure that the company has been declared as nonperforming Asset and its bank account has also been frozen. | 1 | 3,306 | 706 | ### 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:
an opportunity to consider a similar situation in respect of a company petition for winding up, and the Court held that the company cannot say that once the insurance company has paid the money to the principal creditor, then the company is not answerable to anybody. The company is still liable. The relevant part of the said judgment reads as under:In the present matter, it is to be seen that the loan was taken by the company somewhere in the year 1993 and the company which claims to be running profit making assetful company, did not discharge its liability within the statutory period despite the demand notice and the insurance company had to discharge the, Gujarat liability. The endeavour of Mr. Soparkar was to convince us that if the creditor company has already received 95 per cent of the loan amount and the insurance company has not lodged its claim against the appellant company, the court must not exercise its discretion in favour of the admission of the winding up matter. The argument is one of frustration. We are unable to understand the logic behind the said argument. It is not the case of the appellant that certain goods were insured and in lieu of the goods, the money has been paid by the insurance company to the principal creditor. In fact, the loan amount/loan transaction was insured. The Petitioner cannot say that once the insurance company has paid the money to the principal creditor, then the appellant company is not answerable to anybody. The appellant company is still liable and applying the principle of subrogation, the insurance company can always recover the money from the appellant and in any case, if the money is received by the creditor company then, to the extent of the receipts, the creditor company would refund the money to the insurance company. That would be a matter between the insurance company and the creditor company. The debtor is not entitled to take any benefits out of the said transaction.12. Therefore, as held by His Lordship Honble Shri Justice S.J.Kathawalla in Company Petition No. 294 of 2014 with whom I am in respectful concurrence, petitioner is indeed entitled to file the above company petitions against the company and the petitions as filed are maintainable in law. The only obligation that falls upon petitioner is in respect of receipt of sums from respondent which may be in excess of petitioners claim to which extent the insurance company would be entitled to seek recovery of such sums from petitioner. This, however, would be the subject matter of separate proceedings between the insurance company and petitioner and does not merit any further consideration at the stage of admission of this present Company Petition. The submissions that the claim under petition was not a debt and petitioner is not a creditor of the company but the claim is for damages and there was no ascertained liability which can be proved only in a Civil Court, in my view, is not tenable and requires to be rejected. There is no question of the claim being in respect of damages or being unascertained in any manner whatsoever. On the contrary, the amount claimed, I am satisfied, are admittedly ascertained and due and payable by the company to petitioner. There is no dispute in respect of the admitted outstanding of Rs.6,07,00,000/- payable by respondent.13. It should also be noted that respondent has, in fact, made a false statement in the affidavit in reply that it came to know only in July/August having received the insurance money. The email annexed at Exh.1 to the affidavit in reply is a forwarded CC from D. M Pawar of Ganage Group (email ID : [email protected]) sent to his advocate on 28th July 2015. The said D.M. Pawar has forwarded an email that he has received from one Sambhaji Shahapure on 28th July 2018 and from the email, it is seen that the said Mr. Shahapure has received the email from one Abhishek Aggarwal from Ksure on 14th June 2012 that Ksure has paid the insurance claim of petitioner. Despite being aware of the claim being settled by the insurance company, respondent-company submitted to the consent order dated 25th June 2014 and thereafter to come and told the Court by way of a consent order that respondent-company came to know only in July/August 2015 that insurance company Ksure has settled the claim of petitioner company, is ex-facie a false statement.The falsity of respondents case that it came to know in July/August 2015 is also belied by the fact that respondent had even sent an email dated 30th July 2014 to Ksure with copy to petitioner, print out of the said email is at Exh.B to the affidavit in rejoinder and that has not been denied by the company and therefore, it is quite obvious that they are making false statements.14. It should also be noted that respondent company did not even reply to the statutory notice that was sent by petitioner to respondent company. It is settled law that where no response to a statutory notice has been made, the court may pass a winding up order on the basis that amount claimed has not been denied by the company and there is a presumption of inability to pay by the company. Where no response has been made to the statutory notice, the respondent-company runs a risk of winding up petition being allowed. By virtue of Section 434 of the Companies Act 1956 a presumption of the indebtedness can be legitimately drawn by the court where no reply to the statutory notice is forthcoming.15. It should also be noted that in the affidavit in reply, there is not even a mention that the company is commercially solvent. On the contrary, there is an email dated 30th July 2014 (Exh.B) from respondent-company to petitioner and also to Abhishek Aggrawal of Ksure that the company has been declared as nonperforming Asset and its bank account has also been frozen.
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12. Therefore, as held by His Lordship Honble Shri Justice S.J.Kathawalla in Company Petition No. 294 of 2014 with whom I am in respectful concurrence, petitioner is indeed entitled to file the above company petitions against the company and the petitions as filed are maintainable in law. The only obligation that falls upon petitioner is in respect of receipt of sums from respondent which may be in excess of petitioners claim to which extent the insurance company would be entitled to seek recovery of such sums from petitioner. This, however, would be the subject matter of separate proceedings between the insurance company and petitioner and does not merit any further consideration at the stage of admission of this present Company Petition. The submissions that the claim under petition was not a debt and petitioner is not a creditor of the company but the claim is for damages and there was no ascertained liability which can be proved only in a Civil Court, in my view, is not tenable and requires to be rejected. There is no question of the claim being in respect of damages or being unascertained in any manner whatsoever. On the contrary, the amount claimed, I am satisfied, are admittedly ascertained and due and payable by the company to petitioner. There is no dispute in respect of the admitted outstanding of Rs.6,07,00,000/payable by respondent.13. It should also be noted that respondent has, in fact, made a false statement in the affidavit in reply that it came to know only in July/August having received the insurance money. The email annexed at Exh.1 to the affidavit in reply is a forwarded CC from D. M Pawar of Ganage Group (email ID : [email protected]) sent to his advocate on 28th July 2015. The said D.M. Pawar has forwarded an email that he has received from one Sambhaji Shahapure on 28th July 2018 and from the email, it is seen that the said Mr. Shahapure has received the email from one Abhishek Aggarwal from Ksure on 14th June 2012 that Ksure has paid the insurance claim of petitioner. Despite being aware of the claim being settled by the insurance company,submitted to the consent order dated 25th June 2014 and thereafter to come and told the Court by way of a consent order thatcame to know only in July/August 2015 that insurance company Ksure has settled the claim of petitioner company, isa false statement.The falsity of respondents case that it came to know in July/August 2015 is also belied by the fact that respondent had even sent an email dated 30th July 2014 to Ksure with copy to petitioner, print out of the said email is at Exh.B to the affidavit in rejoinder and that has not been denied by the company and therefore, it is quite obvious that they are making false statements.14. It should also be noted that respondent company did not even reply to the statutory notice that was sent by petitioner to respondent company. It is settled law that where no response to a statutory notice has been made, the court may pass a winding up order on the basis that amount claimed has not been denied by the company and there is a presumption of inability to pay by the company. Where no response has been made to the statutory notice, theruns a risk of winding up petition being allowed. By virtue of Section 434 of the Companies Act 1956 a presumption of the indebtedness can be legitimately drawn by the court where no reply to the statutory notice is forthcoming.15. It should also be noted that in the affidavit in reply, there is not even a mention that the company is commercially solvent. On the contrary, there is an email dated 30th July 2014 (Exh.B) fromto petitioner and also to Abhishek Aggrawal of Ksure that the company has been declared as nonperforming Asset and its bank account has also been frozen.
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D.V. Bakshi & Others Vs. Union of India & Others | a ?must? to qualify for entry. The oral test being a highly subjective one such an allegation may be easy to make. But as pointed out earlier in certain situations a written examination alone may not suffice to assess the over- all qualities of an individual and an oral test becomes necessary to evaluate his performance from certain other angles to make an integrated assessment of the candidate. As observed in Lila Dhar?s case (supra) a written examination assesses the man?s intellect and the interview test the man himself and ?the twain shall meet? for a proper selection. If an oral test is, therefore, a ?must? as in this case, a heavy responsibility is cast on the examiners to maintain a proper record of the oral test in respect of each candidate and marks must preferably be assigned under each head considered relevant to evaluate the candidate. Once this care is taken the element of subjectivity will be largely checked and the mark assigned under different heads at the oral test will more or less faithfully reflect the fitness of the candidate. In the matter of evaluation some degree of honest error must be countenanced. However, if there is any allegation of nepotism or favouritism, the same can be checked with reference to the record so maintained. Since the oral teat is a highly subjective one and is susceptible to misuse, the degree of proof required for bringing home the charge of nepotism or favouritism may be light. But that is not to say that a mere allegation based on the fact that passing of an oral test is a ?must? or that the marks reserved for the oral test are excessive will per se, without anything more, set the Court, probing into the records of the oral test. But if the allegation is supported by some dependendable proof, the Court will satisfy itself whether or not the charge is well founded. That is why we have said that a heavy responsibility lies on those examining the candidates at the interview to ensure that proper record is maintained so that there is no room for suspicion in the minds of the unsuccessful candidates that the result of the oral test is tainted with bias for or against any candidate because even light proof in support of the charge may upset the result of the oral test as a whole or qua a candidate, as the case may be. In the present case, however, the allegation is of a general nature and is not supported by even light proof to infer, even prima facie, that the result of the oral test was tainted because of bias. We, therefore, do not see any merit in the contention raised by the petitioners.8. The petitioners fall in two groups, namely, (i) those who passed the written examination at the third opportunity but failed in the only available oral test and (ii) those who passed the written test at the second opportunity but failed in the oral test at both the available opportunities. Candidates belonging to both the groups, therefore, had as many as four opportunities to clear the examination. Certain candidates failed to avail of the opportunity and they must thank themselves for the same. Those who were to avail of the opportunity and those who were unsuccessful at the written test after availing of the opportunity fall in the same category because once the opportunity is available it is for the candidate to avail of it and if he fails to avail of it he cannot be heard to say that he did not have that opportunity. It will, therefore, be seen that all the petitioners in the present group of cases had four opportunities to clear the written as well as the oral test but they failed to do so. In the circumstances, we think that the view taken by the High Court is unassailable. In this connection, the High Court?s observation is as under:?All the other petitioners and persons working under them had the opportunity of appearing in written and oral examinations thrice during the period of substance of their temporary licenses. They have, however, not cleared the oral examination, although, all have cleared their written examination either at first, second or third attempt.??This will show that the petitioners had the required opportunities to pass the examination written as well as oral but they failed to do so in the available opportunities.9. A fervent appeal was made by the learned Counsel for the petitioners that at having regard to the fact that all the petitioners have passed the written examination and that some of them had only one opportunity to appear at the oral examination since they passed the written examination at the third attempt, one further chance to appear at the oral examination should be accorded to them as was done in the past under the circular dated May 19. 1988. That would be a matter on which the concerned authorities would have to take a decision if the circumstances so permit but it would not be proper for this Court to issue a mandate once it is found as a fact that the petitioners had the requisite opportunities under the regulations for clearing the written as well as oral tests. We may add by way of caution and to avoid any litigation in future if the authorities decide to give one further opportunity to the petitioners to clear the oral test it will be by way of grace only and will not confer any right whatsoever on the petitioners and if the authorities insist on any undertaking to be filed by the candidates permitted to avail of that extra chance in the present proceedings that they will accept the result as final and conclusive and will not make it a ground for further litigation, they will be well within their rights to so insist. If such undertakings are filed in the present proceedings, the Registry will accept the same. | 0[ds]5. From the Regulations it seems clear to us that the Collector ii expected to invite applications for the grant of license in the month of January every year. Such an application has to be made in the prescribed Form A. Regulation 6(a) suggests that the applicant must inter alia prove to the satisfaction of the Collector that he has the experience of work relating to clearance of conveyance and goods through the customs for a period of not less than one year. This means that prior experience is a sine qua non. Regulation 8 provides that an applicant who has applied in response to an advertisement under Regulation 4 and who has satisfied the requirements of Regulations 5 and 6 shall be permitted to operate as a custom house agent initially for a period of one year against a temporary license granted in prescribed Form B. Now under Regulation 9, the holder of such a temporary license must qualify in examination at the earliest opportunity. He must appear at the examination held immediately after the grant of the temporary license. The said Regulation provides that he shall be permitted to avail of three chances within the maximum period of two years from the date of issue of the temporary result in placing premium on in competency and inefficiency. It is, therefore, clear on a plain reading of Regulations 8 and 9 that they offer more than three opportunities for passing the written test and at least three opportunities for passing the oral test even if we assume that the result of the first written test is announced after the first oral test. In any view of the matter, it is, therefore, difficult to agree with the learned Counsel for the petitioners that the scheme of the Regulations do not in reality afford three chances for passing the examination to qualify for the grant of a regular license.6. A feeble attempt was made to contend that Regulations 8 and 9 were bad in law, in that, they afford an opportunity to the authorities to eliminate certain candidates with a view to accommodating their favourites This submission is based on the ratio of the decision in Ajay Hasia (supra) and Ashok Kumar Yadav and Ors. v. State of Haryana and Ors. (1985 (4) SCC 417 ) wherein this Court struck down the rule prescribing the high percentage of marks for oral test as offending Article 14 of the Constitution. It is indeed true that the examination, in the instant case, comprises a written paper of 100 marks and an oral test of 100 marks, i.e., 200 marks in all. The passing marks for each test is 50. Thus the oral test of 100 licenses. A conjoint reading of the proviso to Regulation 8 and Clauses (1) and (2) of Regulation 9 leaves no room for doubt that an examination shall be conducted twice every year. If a candidate has availed of two chances and has failed to clear the examination he may request the Collector to permit him to avail of a third chance by extending the duration of the temporary license for a period not exceeding one year. If the period is extended by a year, as in the case of the petitioners herein, he would have further two opportunities to clear the examination. Thus he would have four opportunities to appear at the examinations to be held over a period of two years. Even if we assume that the candidate must pass the written examination before he apace in the oral one, be would have in all four opportunities for clearing the written test and three opportunities for clearing the oral test. If he does not appear or does not pass the written test at the first available opportunity, the number of opportunities to pass the oral test would shrink depending on, at which attempt he has cleared the written test. His inability to clear the written test at the earliest available opportunity cannot operate to his advantage by a corresponding increase in the number of opportunities to clear the oral test. Such a construction of the scheme of the Regulations would marks out of the aggregate of 200 marks out to 50 per cent. Counsel for the petitioner, therefore, contended that the marks reserved for clearing the oral test were excessive thereby affording the examiners an opportunity to arbitrarily eliminate candidates and accommodate their favourites. Now license to act as a Custom House Agent in a custom station requires special knowledge relating to the clearance of conveyance and goods through customs. This becomes immediately clear if we peruse the subjects enumerated in Regulation 9(3), for the examination. The candidate is expected not only to have knowledge regarding the actual working at a custom station but also in regard to the provisions in the Customs Act and allied statutes mentioned in Clause (o) of the said Regulation. While the written test may ascertain the candidate? knowledge in required to the laws, both substantive and procedural, the oral test may help the examiner to assess the candidate?s method of working at the custom station. It must be realised that the agents have to deal with large sums of money and valuable articles. That is why one of the conditions required to be satisfied is in regard to the financial viability of the applicant. This is clear from Regulation 6(b) of the Regulations. Besides as pointed out earlier, before a candidate can apply for the grant of a license, he must satisfy the Collector that he has experience of work relating to clearance of goods through the customs for a period of not less than one year which means that he must have worked as an apprentice to a licensed agent. The extent of knowledge which he must possess to qualify for the license can be gathered from the various subjects enumerated in(a) to (p) of Clauses (3) of Regulation 9. Regulation 10 which relates to grunt of regular license stipulates that temporary license holder must not only have qualified in the examination referred to in Regulation 9 but his performance must also be found to be satisfactory with reference, inter alia, to (a) quantity of value of cargo cleared by license holder conforming to norms as prescribed by the Collector and (b) absence of instances of delay either in the clearance of goods or in the payment of duty for any reason attributable to such license holder or any complaint of misconduct includingof any of the obligations specified in Regulation 14. It would, therefore, appear that the performance of each applicant prior to the grant of the temporary license and during the period he works as a temporary license holder areof scrutiny and this can only be done effectively at the oral interview. The importance of the oral interview lies in the fact that the examiners have an opportunity to assess his performance as a temporary license holder and also seek his clarification in regard to certain matters who might have come to their knowledge during the period he worked as a temporary license holder. The Regulations have, therefore, taken care to ensure that he has experience of at least one year as an apprentice to an agent before he applies for the grant of license. In order to assess his work he is given a temporary license before he qualifies by clearing the prescribed examination. The authorities have the opportunity of assessing his knowledge regarding the laws and procedure through the written examination. It must be remembered that the custom station is a place of work. Observance of Regulations is absolutely essential as movement of very valuable goods takes place and only sufficiently experienced hands can be permitted to act as agents. He must satisfy the authorities that he has adequate knowledge regarding the laws and the procedure connected with the clearance of goods and that he actually is in a position to handle the work from the moment he is licensed. The assessment of his work during the period he holds the license is, therefore, of great relevance and that can be done at the oral test only. The assessment has to be made on the basis of his performance as a temporary license holder and his capacity to handle goods as an agent at the custom station. The curriculum for the examination is, therefore, extensive, vide Regulation 9(3), to test his knowledge regarding the laws relating to the arrival, entry and clearance of goods at the custom station and his actual handling during the period he held the temporary license. That is why Regulation 10 also provides that besides passing the examination his work must be found to be satisfactory with reference to the quantity or valuable of cargo cleared, fulfillment of the prescribed norms, absence of delay in the clearance of goods and the payment of duty and avoidance of complaints in regard to misconduct includingof the obligations set out in Regulation 14. The factors to be assessed at the interview relate to his temperament, managerial ability, communication ability, interpersonal skills, ability to interact with colleagues and officials, general awareness in regard to his functional responsibilities and professional norms as well as norms of behaviour, etc. Therefore, the area of the enquiry in regard to actual working is equally wide and important and there is justification for on oral test prescribing 100 marks with 50 per cent as passing marks. This is so because the authorities have to assess the candidate?s personality, his temperament and his capacity to interact with others concerned with the movement of highly valuable goods, etc. In Llia Dhar v. State of Rajasthan and Ors., (1982(1) SCR 320) this Court highlighting the need for an interview test in certain selections clarified that the test which may be valid for admission to medical colleges may not hold good where it concerns entry into public services. The test evolved in the case of Ajay Hasia and Ashok Kumar Yadav (supra) cannot, therefore, apply with equal force in the matter of grant of license as a Custom House Agent. This has been further clarified in a recent decision in Indian Airlines Corporation v. Capt. K.C. Shukla and Ors., (1993 (1) SCC 17 ). In that case this Court after referring to the decisions in Ajay Hasia, Ashok Kumar Yadav and Lila Dhar (supra) observed that the distinction appears to have been drawn in interview held for competitive examination or admission to educational institutions and selection for higher posts. In the case of educational institutions the distinction has relevance for the reason that the candidates are young and their personality has yet to develop and, therefore, greater weight has to be given to their performance at the written examination rather at the oral examination. It is, therefore, clear that no hard and fast rule can be laid down in this behalf as much would depend on the nature of performance expected for the responsibility to be handled by a candidate after his selection and entry into the establishment. The method of evaluation would, therefore, vary and cannot be a matter of any straightjacket formula. The weight to be given to the performance at the interview would depend on the nature of duties, responsibilities and functions to be handled after selection. The duties, responsibilities and functions of a Custom House Agent are very special demanding not only a high degree of probity and integrity but also intellectual skills, adaptability. Judgment and capacity to take prompt decisions in conformity with the law, rules and regulations. The selection is, therefore, done through those conversant with the working of custom stations and the nature of an agent?s job. We are, therefore, of the opinion that the submission based on the decisions in Ajay Hasia and Ashok Kumar Yadav (supra) cannot be accepted. It may also be mentioned that before the High Court the validity of Regulation 9 was not challenged.It would, therefore, appear that the contention was not seriously urged before the High Court nor was it seriously pressed before us but we have thought it necessary to deal with the same as certain writ petitions have been filed challenging the validity of the Regulations on the said count. We, therefore, thought it proper to examine the same and put a lid thereon.7. The submission that the provision for clearing the oral test with at least 50 per cent marks is susceptible to misuse, namely, to eliminate some and to accommodate others needs closer scrutiny. The submission is general in nature and would be true in all such cases where passing of an oral test is ato qualify for entry. The oral test being a highly subjective one such an allegation may be easy to make. But as pointed out earlier in certain situations a written examination alone may not suffice to assess the overall qualities of an individual and an oral test becomes necessary to evaluate his performance from certain other angles to make an integrated assessment of the candidate. As observed in Lila Dhar?s case (supra) a written examination assesses the man?s intellect and the interview test the man himself and ?the twain shall meet? for a proper selection. If an oral test is, therefore, aas in this case, a heavy responsibility is cast on the examiners to maintain a proper record of the oral test in respect of each candidate and marks must preferably be assigned under each head considered relevant to evaluate the candidate. Once this care is taken the element of subjectivity will be largely checked and the mark assigned under different heads at the oral test will more or less faithfully reflect the fitness of the candidate. In the matter of evaluation some degree of honest error must be countenanced. However, if there is any allegation of nepotism or favouritism, the same can be checked with reference to the record so maintained. Since the oral teat is a highly subjective one and is susceptible to misuse, the degree of proof required for bringing home the charge of nepotism or favouritism may be light. But that is not to say that a mere allegation based on the fact that passing of an oral test is aor that the marks reserved for the oral test are excessive will per se, without anything more, set the Court, probing into the records of the oral test. But if the allegation is supported by some dependendable proof, the Court will satisfy itself whether or not the charge is well founded. That is why we have said that a heavy responsibility lies on those examining the candidates at the interview to ensure that proper record is maintained so that there is no room for suspicion in the minds of the unsuccessful candidates that the result of the oral test is tainted with bias for or against any candidate because even light proof in support of the charge may upset the result of the oral test as a whole or qua a candidate, as the case may be. In the present case, however, the allegation is of a general nature and is not supported by even light proof to infer, even prima facie, that the result of the oral test was tainted because of bias. We, therefore, do not see any merit in the contention raised by the petitioners.8. The petitioners fall in two groups, namely, (i) those who passed the written examination at the third opportunity but failed in the only available oral test and (ii) those who passed the written test at the second opportunity but failed in the oral test at both the available opportunities. Candidates belonging to both the groups, therefore, had as many as four opportunities to clear the examination. Certain candidates failed to avail of the opportunity and they must thank themselves for the same. Those who were to avail of the opportunity and those who were unsuccessful at the written test after availing of the opportunity fall in the same category because once the opportunity is available it is for the candidate to avail of it and if he fails to avail of it he cannot be heard to say that he did not have that opportunity. It will, therefore, be seen that all the petitioners in the present group of cases had four opportunities to clear the written as well as the oral test but they failed to do so. In the circumstances, we think that the view taken by the High Court is unassailable. In this connection, the High Court?s observation is as under:?All the other petitioners and persons working under them had the opportunity of appearing in written and oral examinations thrice during the period of substance of their temporary licenses. They have, however, not cleared the oral examination, although, all have cleared their written examination either at first, second or third attempt.??This will show that the petitioners had the required opportunities to pass the examination written as well as oral but they failed to do so in the available opportunities.9. A fervent appeal was made by the learned Counsel for the petitioners that at having regard to the fact that all the petitioners have passed the written examination and that some of them had only one opportunity to appear at the oral examination since they passed the written examination at the third attempt, one further chance to appear at the oral examination should be accorded to them as was done in the past under the circular dated May 19. 1988. That would be a matter on which the concerned authorities would have to take a decision if the circumstances so permit but it would not be proper for this Court to issue a mandate once it is found as a fact that the petitioners had the requisite opportunities under the regulations for clearing the written as well as oral tests. We may add by way of caution and to avoid any litigation in future if the authorities decide to give one further opportunity to the petitioners to clear the oral test it will be by way of grace only and will not confer any right whatsoever on the petitioners and if the authorities insist on any undertaking to be filed by the candidates permitted to avail of that extra chance in the present proceedings that they will accept the result as final and conclusive and will not make it a ground for further litigation, they will be well within their rights to so insist. If such undertakings are filed in the present proceedings, the Registry will accept the same. | 0 | 5,718 | 3,384 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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a ?must? to qualify for entry. The oral test being a highly subjective one such an allegation may be easy to make. But as pointed out earlier in certain situations a written examination alone may not suffice to assess the over- all qualities of an individual and an oral test becomes necessary to evaluate his performance from certain other angles to make an integrated assessment of the candidate. As observed in Lila Dhar?s case (supra) a written examination assesses the man?s intellect and the interview test the man himself and ?the twain shall meet? for a proper selection. If an oral test is, therefore, a ?must? as in this case, a heavy responsibility is cast on the examiners to maintain a proper record of the oral test in respect of each candidate and marks must preferably be assigned under each head considered relevant to evaluate the candidate. Once this care is taken the element of subjectivity will be largely checked and the mark assigned under different heads at the oral test will more or less faithfully reflect the fitness of the candidate. In the matter of evaluation some degree of honest error must be countenanced. However, if there is any allegation of nepotism or favouritism, the same can be checked with reference to the record so maintained. Since the oral teat is a highly subjective one and is susceptible to misuse, the degree of proof required for bringing home the charge of nepotism or favouritism may be light. But that is not to say that a mere allegation based on the fact that passing of an oral test is a ?must? or that the marks reserved for the oral test are excessive will per se, without anything more, set the Court, probing into the records of the oral test. But if the allegation is supported by some dependendable proof, the Court will satisfy itself whether or not the charge is well founded. That is why we have said that a heavy responsibility lies on those examining the candidates at the interview to ensure that proper record is maintained so that there is no room for suspicion in the minds of the unsuccessful candidates that the result of the oral test is tainted with bias for or against any candidate because even light proof in support of the charge may upset the result of the oral test as a whole or qua a candidate, as the case may be. In the present case, however, the allegation is of a general nature and is not supported by even light proof to infer, even prima facie, that the result of the oral test was tainted because of bias. We, therefore, do not see any merit in the contention raised by the petitioners.8. The petitioners fall in two groups, namely, (i) those who passed the written examination at the third opportunity but failed in the only available oral test and (ii) those who passed the written test at the second opportunity but failed in the oral test at both the available opportunities. Candidates belonging to both the groups, therefore, had as many as four opportunities to clear the examination. Certain candidates failed to avail of the opportunity and they must thank themselves for the same. Those who were to avail of the opportunity and those who were unsuccessful at the written test after availing of the opportunity fall in the same category because once the opportunity is available it is for the candidate to avail of it and if he fails to avail of it he cannot be heard to say that he did not have that opportunity. It will, therefore, be seen that all the petitioners in the present group of cases had four opportunities to clear the written as well as the oral test but they failed to do so. In the circumstances, we think that the view taken by the High Court is unassailable. In this connection, the High Court?s observation is as under:?All the other petitioners and persons working under them had the opportunity of appearing in written and oral examinations thrice during the period of substance of their temporary licenses. They have, however, not cleared the oral examination, although, all have cleared their written examination either at first, second or third attempt.??This will show that the petitioners had the required opportunities to pass the examination written as well as oral but they failed to do so in the available opportunities.9. A fervent appeal was made by the learned Counsel for the petitioners that at having regard to the fact that all the petitioners have passed the written examination and that some of them had only one opportunity to appear at the oral examination since they passed the written examination at the third attempt, one further chance to appear at the oral examination should be accorded to them as was done in the past under the circular dated May 19. 1988. That would be a matter on which the concerned authorities would have to take a decision if the circumstances so permit but it would not be proper for this Court to issue a mandate once it is found as a fact that the petitioners had the requisite opportunities under the regulations for clearing the written as well as oral tests. We may add by way of caution and to avoid any litigation in future if the authorities decide to give one further opportunity to the petitioners to clear the oral test it will be by way of grace only and will not confer any right whatsoever on the petitioners and if the authorities insist on any undertaking to be filed by the candidates permitted to avail of that extra chance in the present proceedings that they will accept the result as final and conclusive and will not make it a ground for further litigation, they will be well within their rights to so insist. If such undertakings are filed in the present proceedings, the Registry will accept the same.
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### Explanation:
where passing of an oral test is ato qualify for entry. The oral test being a highly subjective one such an allegation may be easy to make. But as pointed out earlier in certain situations a written examination alone may not suffice to assess the overall qualities of an individual and an oral test becomes necessary to evaluate his performance from certain other angles to make an integrated assessment of the candidate. As observed in Lila Dhar?s case (supra) a written examination assesses the man?s intellect and the interview test the man himself and ?the twain shall meet? for a proper selection. If an oral test is, therefore, aas in this case, a heavy responsibility is cast on the examiners to maintain a proper record of the oral test in respect of each candidate and marks must preferably be assigned under each head considered relevant to evaluate the candidate. Once this care is taken the element of subjectivity will be largely checked and the mark assigned under different heads at the oral test will more or less faithfully reflect the fitness of the candidate. In the matter of evaluation some degree of honest error must be countenanced. However, if there is any allegation of nepotism or favouritism, the same can be checked with reference to the record so maintained. Since the oral teat is a highly subjective one and is susceptible to misuse, the degree of proof required for bringing home the charge of nepotism or favouritism may be light. But that is not to say that a mere allegation based on the fact that passing of an oral test is aor that the marks reserved for the oral test are excessive will per se, without anything more, set the Court, probing into the records of the oral test. But if the allegation is supported by some dependendable proof, the Court will satisfy itself whether or not the charge is well founded. That is why we have said that a heavy responsibility lies on those examining the candidates at the interview to ensure that proper record is maintained so that there is no room for suspicion in the minds of the unsuccessful candidates that the result of the oral test is tainted with bias for or against any candidate because even light proof in support of the charge may upset the result of the oral test as a whole or qua a candidate, as the case may be. In the present case, however, the allegation is of a general nature and is not supported by even light proof to infer, even prima facie, that the result of the oral test was tainted because of bias. We, therefore, do not see any merit in the contention raised by the petitioners.8. The petitioners fall in two groups, namely, (i) those who passed the written examination at the third opportunity but failed in the only available oral test and (ii) those who passed the written test at the second opportunity but failed in the oral test at both the available opportunities. Candidates belonging to both the groups, therefore, had as many as four opportunities to clear the examination. Certain candidates failed to avail of the opportunity and they must thank themselves for the same. Those who were to avail of the opportunity and those who were unsuccessful at the written test after availing of the opportunity fall in the same category because once the opportunity is available it is for the candidate to avail of it and if he fails to avail of it he cannot be heard to say that he did not have that opportunity. It will, therefore, be seen that all the petitioners in the present group of cases had four opportunities to clear the written as well as the oral test but they failed to do so. In the circumstances, we think that the view taken by the High Court is unassailable. In this connection, the High Court?s observation is as under:?All the other petitioners and persons working under them had the opportunity of appearing in written and oral examinations thrice during the period of substance of their temporary licenses. They have, however, not cleared the oral examination, although, all have cleared their written examination either at first, second or third attempt.??This will show that the petitioners had the required opportunities to pass the examination written as well as oral but they failed to do so in the available opportunities.9. A fervent appeal was made by the learned Counsel for the petitioners that at having regard to the fact that all the petitioners have passed the written examination and that some of them had only one opportunity to appear at the oral examination since they passed the written examination at the third attempt, one further chance to appear at the oral examination should be accorded to them as was done in the past under the circular dated May 19. 1988. That would be a matter on which the concerned authorities would have to take a decision if the circumstances so permit but it would not be proper for this Court to issue a mandate once it is found as a fact that the petitioners had the requisite opportunities under the regulations for clearing the written as well as oral tests. We may add by way of caution and to avoid any litigation in future if the authorities decide to give one further opportunity to the petitioners to clear the oral test it will be by way of grace only and will not confer any right whatsoever on the petitioners and if the authorities insist on any undertaking to be filed by the candidates permitted to avail of that extra chance in the present proceedings that they will accept the result as final and conclusive and will not make it a ground for further litigation, they will be well within their rights to so insist. If such undertakings are filed in the present proceedings, the Registry will accept the same.
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P.S.Mahal and Others Vs. Union of India and Others | the constitutional validity of the rotational rule of seniority cannot depend upon what the government thought to be the correct position in regard to the applicability of the quota rule. The question whether the rot ational rule of seniority is constitutionally valid or not has got to be determined in the light of the interpretation placed on the application of the quota rule by the decision in A.K. Subramans case, because that must be accepted as the correct interpretation and in the context of that interpretation, the constitutional validity of the rotational rule of seniority must be judged. But, as pointed out above, we do not think this contention urged on behalf of respondent Nos. 4 to 190 is correct. We are not inclined to accept the submission of respondent Nos. 4 to 190 that under-recruitment of Assistant Executive Engineers took place because the government thought that the quota rule was to be applied only at the stage of confirmation. There is considerable material placed before the court to show that the government rightly understood the quota rule to be applicable at the stage of initial promotion but failed to strictly implement it. Paragraph 4 of the minutes of the meeting held on 14th May, 1968 in the office room of Shri B.R. Patel, Secretary, Ministry of Works and Supply, clearly emphasizes this position by stating that "the intake of Assistant Executive Engineers should be increased by considering 2/3rd of all the temporary and deputation posts in the grade of Executive Engineers and above in the department as permanent ones for the purpose of working out the strength at the junior scale." So also we find a categorical statement to the same effect in the letter dated 19th October, 1971 addressed by Shri Kartar Singh, Joint Secretary to the Government of India, Ministry of Works and Housing a letter to which we have already referred earlier. The Government also took u p a positive stand in the affidavit in reply filed by P.B. Kulkarni in A.K. Subramans case where it was stated:"I submit that the quota rule is to be applied as and when vacancies in the grade of Executive Engineers are required to be filled but as already stated earlier, it has not been possible to apply this quota rule rigidly at the time of officiating promotions as promotions from the grade of Assistant Engineers have been in excess of their quota." (Emphasis supplied). It will thus be seen that the government was under no illusion in regard to the true position relating to the applicability of the quota rule. But the government deliberately resorted to the policy of under-recruitment of Assistant Executive Engineers because, as set out in the Note regarding Cadre Review of the Central Engineers Service Class I, prepared and submitted to the Government in June, 1978, it was felt that "it is not possible to recruit enough officers in Class I junior sc ale to fill up the quota at Executive Engineers level as it would worsen the promotion prospects of direct recruits to class I and make the service totally unattractive". The Note regarding Cadre Review also pointed out:"A perusal of for m VI would indicate that in the next five years the annual recruitment would be of the order of 80 and in the subsequent five years it would be of the order of 40. According to the existing Rules, the vacancies in the grade of Executive Engineers are to be filled up by the promotion of Asstt. Executive Engineers (Group A) and Asstt. Engineers (Group B) in the ratio of 1: 1 Since the annual intake of Asstt. Executive Engineers is to be co-related with the vacancies that would be available in the grade of Executive Engineers, the annual intake of Asstt. Executive Engineers (CES GROUP A) would be 40 in the next five years and 20 in the subsequent five years. It has been already explained in para 2: 3: 6 that when the annual recruitment was less than 10, the direct recruits were able to reach the Junior Administrative grade in 10 to 11 years. When this was subsequently increased to 20 per annum the period taken for promotion has increased to 14 years which is likely to increase further if the annual intake is maintained at the same level. For this reason, it is not considered desirable to appoint direct recruits to C.E.S. Group A in large number. In the Indian Railways Service of Engineers, the recruitment to the Junior Scale in Group A is related to the number of posts at the level of Chief Engineer and above and the annual intake has generally been less than the number of posts of Chief Engineers. In the CPWD we have only 12 posts of Chief Engineers and it is, therefore, recommended that the annual intake to Junior Scale Class I thro ugh UPSC competitive Examination should be restricted to 10 only." 19. There can be no doubt that the failure to recruit Assistant Executive Engineers in sufficient numbers, so that when vacancies in the grade of Executive Engineers allocable to the quota of Asstt. Executive Engineers arose from year to year, there would be Asstt Executive Engineers available for promotion to fill such vacancies, was responsible for the gross distortion which took place in the cadre of Executive Engineers over the years.We must in the circumstances hold that Rules 2(iii) and 2(iv) of the Rules of 1976 are violative of Articles 14 and 16 of the Constitution and they must be declared to be unconstitutional and void. It that be so, then obviously the seniority between Assistant Engineers and Assistant Executive Engineers regularly promoted within their respective quota must be determined by the length of continuous officiation in service in the grade o f Executive Engineers, subject to the qualification that in case of Assistant Engineers the length of continuous officiation shall be reckoned from the date when their promotion is regularised by absorption within their lawful quota. 20. | 1[ds]This ground of challenge is clearly unsustainable and must be rejected. It is true that the Rules of 1976 have been brought into force with effect from 10th December, 1974 but in rules 2(iii) and 2 (iv) they lay down a rule of seniority affecting Assistant Engineers and Assistant Executive Engineers promoted as Executive Engineer s regularly within their respective quota from and after 22nd December, 1959. It is therefore not possible to say as a matter of plain grammatical construction that the Rules of 1976 cannot affect the petitioners and other Assistant Engineers promoted regularly within there quota prior to 10th December, 1974.The question would however remain whether Rules 2 (iii) and 2 (iv) of the Rules of 1976 in so far as they lay down a rule of seniority different from the rule of length of continuous officiation for Executive Engineers promoted from and after 22nd December, 1959, are constitutionallyvalid.This is the question which we shall proceed to consider under Ground CRe: Ground CWe have already pointed out that thou gh the Rules of 1976 have been brought into force with effect from 10th December 1974, they do not have the effect of over-riding the decision in A.K. Subramans case directing the Government to amend and revise the seniority list so as to fix inter se seniority between Assistant Engineers and Assistant Executive Engineers promoted regularly within their respective quota up to 11th December 1974, by applying the rule of seniority based on length of continuous officiation. On this view, Rules 2(iii) and 2(iv) of the Rules of 1976, in so far as they provide for seniority being given en bloc to the Assistant Executive Engineers promoted to the 86 carried forward posts of Executive Engineers and apply the rotational formula for the purpose of determining seniority amongst Assistant Engineers and Assistant Executive Engineers promoted to the subsequent vacancies, must be held to be ineffective qua Assistant Engineers &Assistant Executive Engineers promoted upto 11th December, 1974 and so far as these Assistant Engineers and Assistant Executive Engineers are concerned, their inter se seniority must be held to be governed by the length of continuous officiation in the grade of Executive Engineers.But the question would still survive whether inter se seniority between Assistant Engineers and Assistant Executive Engineers promoted subsequent to 11th December, 1974 would have to be determined in accordance with the rotational rule of seniority set out in Rule 2(iv) or this rotational rule of seniority is unconstitutional and void as offending Articles 14 and 16 of the ConstitutionIt may also be considered in the alternative, on the assumption that Rules 2(iii) and 2(iv) of the Rules of 1976 govern the determination of inter se seniority between Assistant Engineers and Assistant Executive Engineers promoted from and after 22nd December, 1959 despite the decision in A.K. Subraman case, whether these rules can successfully meet the challenge of Article 14 and 16 or they would be liable to be condemned as constitutionallye may first consider the constitutional validity of Rules 2(iii) and 2(iv) of the rules of 1976 in so far as they affect the inter se seniority of Assistant Engineers and Assistant Executive Engineers promoted regularly within their respective quota from and after 22nd December, 1959. Now the position which obtained on 22nd December 1959 was that there were 86 Assistant Engineers who had been promoted in excess of their quota and correspondingly there was short-fall of 86 in promotions of Assistant Executive Engineers. We are not sure whether in the light of what we have said above, the excess in promotions of Assistant Engineers and the deficiency in promotions of Assistant Executive Engineers would stand reduced, but that would not make any difference so far as the present question is concerned and we shall therefore proceed on the footing that the excess in promotions of Assistant Engineers and the short-fall in promotions of Assistant Executive Engineers was 86. The question is whether, consistently with the constitutional requirement of Articles 14 and 16, en bloc seniority could be given to the Assistant Executive Engineers promoted to fill the 86 vacancies allocable to the quota of Assistant Executive Engineers and remaining unfilled by them up to 22nd December 1959. These 86 vacancies were under Rule 2(iii) directed to be carried forward and filled by Assistant Executive Engineers promoted on or after 22nd December 1959 and the Assistant Executive Engineers no promoted were given seniority en bloc. The petitioners objected to this provision in Rule 2(iii) for carry forward of these 86 vacancies and contended that there could be no carry forward of any vacancies which were not filled by Assistant Executive Engineers and so promotion s of Assistant Executive Engineers could be made to fill such vacancies as from the date when they arose in any particular year. This objection raised on behalf of the petitioners is partly sustainable and partly not. Where the quota rule is a statutory rule which has to be scrupulously observed, the vacancy which according to the quota rule is allocable to promotees from one source cannot be filled by a promotee from another source and if, notwithstanding the quota rule, the vacancy is filled by a promotee from that other source, such promotion would be irregular and as pointed out above, the vacancy would continue to remain a vacancy liable to be filled by a promotee from the first mentioned source. It would not be strictly accurate to say that in such a case the vacancy is carried forward in the sense in which that expression has been used in T. Devdasan v. Union of India. It was pointed out by this Court in Mervin Coutinhs v. The Collector of Customs, Bombay:".....in the case of the carry forward rule certain quota is fixed annually for a certain class of persons and it is carried forward from year to year. This is very different from a case where a service is divided into two parts and there are two sources of recruitment, one of promotion and the other by direct recruitment. In such a case the whole cadre of a particular service is divided into two parts and there is no question of carrying anything forward from year to year in the matter of annual intake".These observations w ere quoted with approval by a Bench of Five Judges of this Court in G.D. Kelkar v. Chief Collector of Imports and Exports. What therefore happens in such a case is that the vacancy which is pro tempore irregularly occupied by a promotee from another source remains available for being filled by a promotee from the source to which the vacancy belongs and in that sense, it may loosely be said that the vacancy is carried forward from the year in which it arose to a subsequent year in which it is properly filled by a promotee from the right source. This is precisely what Ray, C.J. speaking on behalf of the Court in V. S. Badami v. State of Mysore said at page 823 of t he. if promotions are made to vacancies in excess of the promotional quota, the promotions may not be total illegal but would be irregular. The promotees cannot claim any right to hold the promotional posts unless the vacancies fall within their quota. If promotees occupy any vacancies which are within the quota of direct recruits when direct recruitment takes place the direct recruit will occupy the vacancies within t heir quota. Promotees who were occupying the vacancies within the quota of direct recruits will either be reverted or they will be absorbed in the vacancies within their quota in the facts and circumstances of a ca se."We must therefore hold that Respondent Nos. 1 to 3 were right in proceeding on the basis that 86 vacancies allocable to the quota of Assistant Executive Engineers remained unfilled as on 22nd December, 1959 and were available for being filled by Assistant Executive Engineers subsequent to that dateBut the question arises whether the Assistant Executive Engineers promoted to fill these 86 vacancies which were, to use the expression in Rule 2(iii), carried forward from the period prior to 22nd December 1959 could be deemed to have been promoted from the dates when these 86 vacancies arose or they could be said to have been promoted only from the dates of their actual appointment.Now obviously there could not be any appointment of Assistant Executive Engineers to these 86 vacancies with retrospective effect and they must be taken to have been promoted to these 86 vacancies only from the dates of their actual appointment and from no earlier dates. If that be so, i t is difficult to appreciate how, consistently with the mandate of Articles 14 and 16 of the Constitution, an Assistant Executive Engineer appointed to one of these 86 vacancies could under Rule 2(iii) be given seniority as if he were promoted to that vacancy on 22nd December 1959, though he might in fact have been promoted years later and on this basis given precedence over Assistant Engineers promoted regularly within their quota long prior to the actual promotion of such Assistant Executive Engineer. The consequence of giving effect to Rule 2(iii) providing en bloc seniority to the Assistant Executive Engineers promoted to fill these 86 vacancies would be that a large number of Assistant Engineers though promote d regularly within their quota years before the actual promotion of such Assistant Executive Engineers would become junior to such Assistant Executive Engineers and their promotional opportunities would be seriously prejudiced In fact , they would have to wait until the Assistant Executive Engineers promoted to these 86 vacancies were promoted further as Superintending Engineers and then only they would have a chance of being considered for further promotion and even such chance would recede and be reduced to almost nil if the rotational rule of seniority were to be applied in respect of promotions to subsequent vacancies as set out in Rule 2(iv). This would become amply clear if we look at the chart Annexure I to the writ petition which reproduces the seniority list dated 14th August 1975 along with other particulars relating to the Assistant Engineers and Assistant Executive Engineers promoted as Executive Engineers. The Assistant Executive Engineers promoted to these 86 carried forward vacancies figure in the seniority list dated 14th August 1975 at Sr. Nos 100 to 185 and the particulars given in regard to them in the chart Ex. I show that though the Assistant Executive Engineers at Sr. Nos. 122 to 185 were promoted as Executive Engineers after 1962, they were placed higher in seniority than petitioner No. 1 who was as Assistant Engineer promoted as Executive Engineer and absorbed within his legitimate quota in 1962 and so also the Assistant Executive Engineers at Sr. Nos. 173 to 185 though promoted after 1966 were given seniority above petitioner No. 2 who was an Assistant Engineer promoted as Executive Engineer and absorbed within his lawful quota in 1966, Rule 2(iii ) in so far as it gives en bloc seniority to the Assistant Executive Engineers promoted to these 86 vacancies irrespective of the date when they were actually promoted and pushes down in seniority Assistant Engineers though promoted regularly w ithin their quota prior to the actual promotion of such Asstt. Executive Engineers, thereby prejudicially affecting their promotional opportunities, must therefore be held to be violative of Articles 14 and 16 of the Constitution.We find that rule 2(iv) also suffers from the same infirmity. It provides for rotational rule of seniority based on the prevailing quota for determining inter se seniority between Assistant Engineers and Assistant Executive Engineers promoted to the grade of Executive Engineers from and after 22nd December 1959 subject to en bloc seniority being given to the Assistant Executive Engineers promoted to the 86 carried forward vacancies as set out in Rule 2(iii). Obviously, if Rule 2 (iii) providing for en bloc seniority to be given to the Assistant Executive Engineers promoted to the 86 carried forward vacancies is unconstitutional and void as held by us in the preceding paragraph of this judgment, it must follow that the inter se seniority between Assistant Engineers and Assistant Executive Engineers promoted from and after 22nd December 1959 would be governed wholly by the rotational rule of seniority set out in Rule 2(iv). Now there can be no doubt that a rule of seniority based on rotation of vacancies according to the quota prevailing at the time would be constitutionally acceptable if the quota rule were strictly implemented, barring minor deviations. It is well settled as a result of several decision of this Court that there is nothing inherently wrong in working out the quota rule by adopting the rotational rule of seniority. But, as pointed out by this Court in N.K Chauhan v. State of Gujarat (supra) quota is not so inter-locked with rota that where the former is expressly prescribed, the latter is impliedly inscribed". The quota rule does not inevitably invoke the application of the rotational rule of seniority. Even where a quota is prescribed for recruitment from different sources, there may be different modes prescribed for determining seniority of officers on entry into the cadre. In fact, right from 25th August, 1949 when the quota rule was introduced upto 22nd December, 1959, the seniority amongst Assistant Engineers and Assistant Executive Engineers promoted as Executive Engineers was governed not by the rotational rule by but the length of continuous officiation. It is therefore obvious that even where there is a quota rule governing recruitment to a cadre from different sources it is not necessary that there should be any particular rule of seniority. The Government may in its wisdom adopt an appropriate rule of seniority which may be based on length of continuous officiation or may follow a roster arranged in conformity with the quota rule so that seniority may be determined according to the rotation of vacancies under the quota rule. There may also be any other appropriate rule for determining seniority in a cadre. Indeed, as pointed out by Krishna Iyer, J. in N.K. Chauhans case, myriad ways can be conceived "for determining seniority of officers on entry into a cadre." But whatever may be the rule of seniority adopted by the Government, it is well settled that it must satisfy the best of equality enshrined in Articles 14 and 16 of the Constitution. The question in each case would be whether on the facts and circumstances of the case, the rule of seniority prescribed by the Government meets the challenge of the constitutional provision enacted in Articles 14 and 16.We have already pointed out that there is no inherent vice in the quota rule being operated through the rotational rule of seniority. Where the rotational rule of seniority is adopted, the relative seniority of promotees from different sources has to be determined on the basis of a roster maintained in accordance with the quota rule, so that when promotion of an officer is regularly made within his quota, he is fitted into the vacancy reserved for promotees from his source and his seniority is reckoned from the date when such vacancy arose. But this rotational rule of seniority can work only if the quota rule is strictly implemented from year to year. Some slight deviations from the quota rule may not be material but as pointed out by Palekar, J. in the Bishan Swarup Guptas case, "if there is enormous deviation, other considerations may arise". If the rotational rule of seniority is to be applied for determining seniority amongst officers promoted from different sources, the quota rule must be observed. The application of the rotational rule of seniority when there is large deviation from the quota rule in making promotions is bound to create hardship and injustice and result in impermissible discrimination. That is why this court pointed out in A. K. Subarmanss case that "when recruitment is from two or several sources, it should be observed that there is no inherent invalidity in introduction of quota system and to work it out by a rule of rotation. The existence of a quota and rotational rule, by itself, will not violate Article 14 or Article 16 of the Constitution ....... ..... It is the unreasonable implementation of the same which may, in a given case, attract the frown of the equality clause." The rotational rule of seniority is inextricably linked up with the quota rule and if the quota rule is not strictly implemented and there is large deviation from it regularly from year to year, it would be grossly discriminatory and unjust to give effect to the rotational rule of seniority. We agree wholly with the observation of D.A. Desai, J. in A. Janardh an v. Union of India that "the quota rule is linked with the seniority rule; if the first breaks down or is illegally not adhered to, giving effect to the second would be unjust, iniquitous and improper". This was precisely the reason why the Court in the first Bishan Sarup Guptas case held that with the collapse of the quota rule, the rule of seniority set out in Rule 1(f) (iii) also went.Now in the present case the record shows that there has been enormous deviation from the quota rule in the promotions of Assistant Executive Engineers and such deviation has continued from year to year over a period of almost 25 years. We have in an earlier part of this judgment adverted to the fact that as on 22nd December, 1959 t here was a short fall in the promotions of Assistant Executive Engineers to the extent of 86, because the quota rule had not been properly implemented from 1953 up to 22nd December, 1959 and promotions of Assistant Executive Engineers had not been effected according to the quota applicable to them. It is interesting to note that even after 22nd December, 1959, the quota was consistently breached from year to year except for four or five years and there was massive under recruitment of Assistant Executive Engineers with the result that as on 31st July, 1975, the cumulative shortfall in promotions of Assistant Executive Engineers was 206 while there was corresponding excess in promotions of Assistant Engineers to the extent of the same number. Though there was such large deficiency in promotions of Assistant Executive Engineers and corresponding excess in promotions of Asstt. Engineers upto 31st July, 1975, no attempt was made by the Government to set right this imbalance by stepping up the recruitment of Assistant Executive Engineers in the subsequent years so as to restore the balance in the composition of the cadre of Executive Engineers. On the contrary, the under recruitment of Assistant Executive Engineers continued uninterrupted and by the end of 1981 the short-fall in the promotions of Assistant Executive Engineers increased to 247 with corresponding excess in the promotions of Assistant Engineers. This enormous deviation from the quota rule on account of massive under recruitment of Assistant Executive Engineers has led to grave distortion and it is difficult to see how, in this situation, the rotational rule of seniority can be applied consistently with the mandate of equality enshrined in Articles 14 and 16. The rotational rule of seniority must obviously break down when there is such massive departure from the quota rule regularly from year to year leading to continuously increasing deficiency in pro motions of Assistant Executive Engineers and corresponding excess in promotions of Assistant Engineers.It is obvious that by reason of under-recruitment of Assistant Executive Engineers and over-recruitment of Assistant Engineers in breach of the quota rule over a period of almost 25 years, most of the Assistant Engineers having been promoted in excess of their quota would have to be pushed down to subsequent years when they could be absorbed within their lawful quota and many of them would have to wait for 7 to 12 years on an average before their promotions could be regularised by absorption within their quota. But, despite regularisation of their promotions after a wait of seven to twelve years, they would not be entitled to claim seniority over Assistant Executive Engineers promoted later in point of time because by reason of the application of the rotational rule of seniority based on the roster maintained in accordance with the quota rule, the Assistant Executive Engineers though promoted subsequently would be entitled to have their seniority reckoned from the date when the vacancy allocable to their quota arose. The Assistant Executive Engineers though promoted long after the regularisation of the promotion of the Assistant Engineers would gain seniority over such Assistant Engineers, because they would be fitted into the vacancies kept reserved for them and artificial seniority would be given to them on the fictional hypothesis that such vacancies were filled by them at the time when they arose. The result would be that Assistant Executive Engineers who were promoted years after the regularisation of the promotions of Assistant Engineers by absorption within their quota which regularisation also would have taken place after they had been working as Executive Engineers for a period of about 7 to 12 years would become senior to such Assistant Engineers even though at the time when they were promoted, such Assistant Engineers would have already been functioning as Executive Engineers for a number of years. The Assistant Executive Engineers promoted later in point of time would shoot up in seniority irrespective of the length of their service in the grade of Executive Engineers, by reason of the rotational rule of seniority based on the roster maintained in accordance with the quota rule. It is obvious that giving such artificial seniority to Assistant Executive Engineers promote d years after the regular promotions of Assistant Engineers would completely blight the promotional opportunities of such Assistant Engineers, because for promotion to the higher grade of Superintending Engineers, they would have to wait for consideration of their case until the Assistant Executive Engineers who are given artificial seniority over them are promoted, even though they would have put in a much longer period of service as Executive Engineers than such Assistant Executive Engineers. The point we are making would become obvious if we consider a few illustrative instances. Take, for example, the case of petitioner No. 1. He was promoted as Executive Engineers on 1st October, 1956 but since his promotion was out side the quota of Assistant Engineers, he had to be pushed down and he was ultimately absorbed within his lawful quota in 1962 and though he became a regular promotee within his quota since 1962, he was placed at serial No. 273 in the seniority list dated 14th August 1975 while many Assistant Executive Engineers promoted much later in point of time than 1962 were placed higher than him in seniority. The result was that he never got a chance for being considered for promotion as Superintending Engineer and he ultimately retired as Executive Engineer on 31st January, 1978. The case of petitioner No. 1 may now be contrasted with that of J.P. Singhal, who was recruited as Assistant Executive Engineer on 1st February, 1967 and who was promoted as Executive Engineer on 14th January, 1972. Though J.P. Singhal was not even in service at the date when petitioner No. 1 became a regular promotee Executive Engineer in 1962 and he was promoted as Executive Engineer almost ten years after the regular promotion of petitioner No. 1 by absorption within his quota, J.P. Singhal was placed in seniority at Sr. No. 113 while, as pointed out above, petitioner No. 1 was placed at Sr. No. 27 3 in the seniority list dated 14th August 1975, with the result that J.P. Singhal came to be promoted as Superintending Engineer on 15th February 1979 while petitioner No. 1 did not even have a chance of being considered for such promotion. Similarly we may also contract the case of petitioner No. 2 with that of R.A. Armugam. Petitioner No. 2 was promoted as Executive Engineer on 7th April, 1959 but since his promotion was not within the quota of Assistant Engineer, he had to be push ed down and he was ultimately absorbed within his quota in 1966 and though he was regularly promoted as Executive Engineer within his quota since 1966, he was placed at serial No. 396 in the seniority list dated 14th August, 1975 while R.A. Armugam who was recruited for the first time as Assistant Executive Engineer on 20th January 1971 and promoted as Executive Engineer only on 14th April, 1975 was placed higher in seniority at serial No. 260. Thus, the result of the application of the rotational rule of seniority was that R.A. Armugam who was not even in service at the date when petitioner No. 2 became a regularly promoted Executive Engineer and who was promoted as Executive Engineer 9 years after petitioner No. 2, acquired several places above petitioner No. 2 in seniority. It is not necessary for us to multiply instances where Assistant Executive Engineers promoted years after the regular promotion of Assistant Engineers have shot up in seniority above such Assistant Engineers by reason of the applicability of the rotational rule of seniority, with devastating effect on the promotional chances of such Assistant Engineers. Such instances are legion and, in fact, almost every Assistant Engineer has in the process suffered loss of seniority vis-a-vis Assistant Executive Engineers promoted years later in point of time. The application of the rotational rule of seniority has thus resulted in gross discrimination against Asstt. Engineers promoted as Executive Engineers, in so far as their opportunities for promotion to the higher grades are concerned. The seed of discrimination attracting the frown of the equality clause has germinated from the fact of regular undue deviation in actual implementation of the quota rule and obviously the deviation from the quota rule, the greater and more intense is the discrimination. We have already pointed out the enormity of the deviation from the deviation from the quota rule in the present case and this deviation continued from year to year for a period of over 25 years has considerably aggravated the discrimination against the Assistant Engineers.Now it is obvious that if Assistant Executive Engineers recruited at a young age are given artificial seniority several years above the Assistant Engineers who have already been pushed down 7 to 12 years before absorption within their lawful quota, they would get chances of promotion much earlier than the Assistant Engineers and once promoted, they being young in age would occupy the posts in the higher grades for a much longer period and that to a large extent block the chances of promotion of Assistant Engineers even when their turn comes for consideration though at a much belated point of time. If officers from two sources are promoted according to quota, then officers from both sources get promotion to posts in the higher grade on the basis of continuous officiating service in the grade, reckoned from the initial date of appointment subject, of course, to merit and this process goes on continuously due to progressive retirement of officers in the higher grades, such officers being of an appropriate higher ag e group. But if, as in the present case, relatively younger officers drawn from one source are given artificial seniority over older officers promoted from the other source, such younger officers would, by the reason of the artificial seniority g iven to them progressively occupy most of the posts in the higher grades and because they belong to a younger age group, they would block the promotional avenues open to the officers drawn from the other source. This disastrous situation h as occurred here because of the rotational rule of seniority and the result is that, as at the end of 1981, out of 101 Superintending Engineers 93 were from the source of Assistant Executive Engineers and so far as the higher cadre of Chief Engineers is concerned, all the 19th Chief Engineers were from the same source, namely, Assistant Executive Engineers, though in the grade of Executive Engineers, out of a total of 384 Executive Engineers, 103 only were from the source of Assistant Executive Engineers while 281 were from the source of Assistant Engineers. These statistics clearly highlight how discriminatory and unjust has been the application of the rotational rule of seniority to the Assistant Engineers.It was contended on behalf of respondent Nos. 4 to 190 that the under recruitment of Assistant Executive Engineers during the period from 1949 to 31st July, 1975 was due to the fact that the Government took the view, which of course was found erroneous by the court in A.K. Subramans case that the quota rule was to be applied only at the stage of confirmation and it was because a different view was taken in A.K. Subramans case, namely, that the quota rule was applicable at the stage of initial promotion in an officiating capacity to the grade of Executive Engineers and not at the time of confirmation that this imbalance in seniority took place. This contention is clearly unfounded but even if it were not so, it is entirely immaterial, because the constitutional validity of the rotational rule of seniority cannot depend upon what the government thought to be the correct position in regard to the applicability of the quota rule. The question whether the rot ational rule of seniority is constitutionally valid or not has got to be determined in the light of the interpretation placed on the application of the quota rule by the decision in A.K. Subramans case, because that must be accepted as the correct interpretation and in the context of that interpretation, the constitutional validity of the rotational rule of seniority must be judged. But, as pointed out above, we do not think this contention urged on behalf of respondent Nos. 4 to 190 is correct. We are not inclined to accept the submission of respondent Nos. 4 to 190 that under-recruitment of Assistant Executive Engineers took place because the government thought that the quota rule was to be applied only at the stage of confirmation. There is considerable material placed before the court to show that the government rightly understood the quota rule to be applicable at the stage of initial promotion but failed to strictly implement it. Paragraph 4 of the minutes of the meeting held on 14th May, 1968 in the office room of Shri B.R. Patel, Secretary, Ministry of Works and Supply, clearly emphasizes this position by stating that "the intake of Assistant Executive Engineers should be increased by considering 2/3rd of all the temporary and deputation posts in the grade of Executive Engineers and above in the department as permanent ones for the purpose of working out the strength at the junior scale." So also we find a categorical statement to the same effect in the letter dated 19th October, 1971 addressed by Shri Kartar Singh, Joint Secretary to the Government of India, Ministry of Works and Housing a letter to which we have already referred earlier. The Government also took u p a positive stand in the affidavit in reply filed by P.B. Kulkarni in A.K. Subramans case where it was stated:"I submit that the quota rule is to be applied as and when vacancies in the grade of Executive Engineers are required to be filled but as already stated earlier, it has not been possible to apply this quota rule rigidly at the time of officiating promotions as promotions from the grade of Assistant Engineers have been in excess of their quota." (Emphasis supplied).It will thus be seen that the government was under no illusion in regard to the true position relating to the applicability of the quota rule. But the government deliberately resorted to the policy of under-recruitment of Assistant Executive Engineers because, as set out in the Note regarding Cadre Review of the Central Engineers Service Class I, prepared and submitted to the Government in June, 1978, it was felt that "it is not possible to recruit enough officers in Class I junior sc ale to fill up the quota at Executive Engineers level as it would worsen the promotion prospects of direct recruits to class I and make the service totally unattractive". The Note regarding Cadre Review also pointedA perusal of for m VI would indicate that in the next five years the annual recruitment would be of the order of 80 and in the subsequent five years it would be of the order of 40. According to the existing Rules, the vacancies in the grade of Executive Engineers are to be filled up by the promotion of Asstt. Executive Engineers (Group A) and Asstt. Engineers (Group B) in the ratio of 1: 1 Since the annual intake of Asstt. Executive Engineers is to be co-related with the vacancies that would be available in the grade of Executive Engineers, the annual intake of Asstt. Executive Engineers (CES GROUP A) would be 40 in the next five years and 20 in the subsequent five years. It has been already explained in para 2: 3: 6 that when the annual recruitment was less than 10, the direct recruits were able to reach the Junior Administrative grade in 10 to 11 years. When this was subsequently increased to 20 per annum the period taken for promotion has increased to 14 years which is likely to increase further if the annual intake is maintained at the same level. For this reason, it is not considered desirable to appoint direct recruits to C.E.S. Group A in large number. In the Indian Railways Service of Engineers, the recruitment to the Junior Scale in Group A is related to the number of posts at the level of Chief Engineer and above and the annual intake has generally been less than the number of posts of Chief Engineers. In the CPWD we have only 12 posts of Chief Engineers and it is, therefore, recommended that the annual intake to Junior Scale Class I thro ugh UPSC competitive Examination should be restricted to 10 only."There can be no doubt that the failure to recruit Assistant Executive Engineers in sufficient numbers, so that when vacancies in the grade of Executive Engineers allocable to the quota of Asstt. Executive Engineers arose from year to year, there would be Asstt Executive Engineers available for promotion to fill such vacancies, was responsible for the gross distortion which took place in the cadre of Executive Engineers over the years.We must in the circumstances hold that Rules 2(iii) and 2(iv) of the Rules of 1976 are violative of Articles 14 and 16 of the Constitution and they must be declared to be unconstitutional and void. It that be so, then obviously the seniority between Assistant Engineers and Assistant Executive Engineers regularly promoted within their respective quota must be determined by the length of continuous officiation in service in the grade o f Executive Engineers, subject to the qualification that in case of Assistant Engineers the length of continuous officiation shall be reckoned from the date when their promotion is regularised by absorption within their lawful quota. | 1 | 26,811 | 6,305 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
the constitutional validity of the rotational rule of seniority cannot depend upon what the government thought to be the correct position in regard to the applicability of the quota rule. The question whether the rot ational rule of seniority is constitutionally valid or not has got to be determined in the light of the interpretation placed on the application of the quota rule by the decision in A.K. Subramans case, because that must be accepted as the correct interpretation and in the context of that interpretation, the constitutional validity of the rotational rule of seniority must be judged. But, as pointed out above, we do not think this contention urged on behalf of respondent Nos. 4 to 190 is correct. We are not inclined to accept the submission of respondent Nos. 4 to 190 that under-recruitment of Assistant Executive Engineers took place because the government thought that the quota rule was to be applied only at the stage of confirmation. There is considerable material placed before the court to show that the government rightly understood the quota rule to be applicable at the stage of initial promotion but failed to strictly implement it. Paragraph 4 of the minutes of the meeting held on 14th May, 1968 in the office room of Shri B.R. Patel, Secretary, Ministry of Works and Supply, clearly emphasizes this position by stating that "the intake of Assistant Executive Engineers should be increased by considering 2/3rd of all the temporary and deputation posts in the grade of Executive Engineers and above in the department as permanent ones for the purpose of working out the strength at the junior scale." So also we find a categorical statement to the same effect in the letter dated 19th October, 1971 addressed by Shri Kartar Singh, Joint Secretary to the Government of India, Ministry of Works and Housing a letter to which we have already referred earlier. The Government also took u p a positive stand in the affidavit in reply filed by P.B. Kulkarni in A.K. Subramans case where it was stated:"I submit that the quota rule is to be applied as and when vacancies in the grade of Executive Engineers are required to be filled but as already stated earlier, it has not been possible to apply this quota rule rigidly at the time of officiating promotions as promotions from the grade of Assistant Engineers have been in excess of their quota." (Emphasis supplied). It will thus be seen that the government was under no illusion in regard to the true position relating to the applicability of the quota rule. But the government deliberately resorted to the policy of under-recruitment of Assistant Executive Engineers because, as set out in the Note regarding Cadre Review of the Central Engineers Service Class I, prepared and submitted to the Government in June, 1978, it was felt that "it is not possible to recruit enough officers in Class I junior sc ale to fill up the quota at Executive Engineers level as it would worsen the promotion prospects of direct recruits to class I and make the service totally unattractive". The Note regarding Cadre Review also pointed out:"A perusal of for m VI would indicate that in the next five years the annual recruitment would be of the order of 80 and in the subsequent five years it would be of the order of 40. According to the existing Rules, the vacancies in the grade of Executive Engineers are to be filled up by the promotion of Asstt. Executive Engineers (Group A) and Asstt. Engineers (Group B) in the ratio of 1: 1 Since the annual intake of Asstt. Executive Engineers is to be co-related with the vacancies that would be available in the grade of Executive Engineers, the annual intake of Asstt. Executive Engineers (CES GROUP A) would be 40 in the next five years and 20 in the subsequent five years. It has been already explained in para 2: 3: 6 that when the annual recruitment was less than 10, the direct recruits were able to reach the Junior Administrative grade in 10 to 11 years. When this was subsequently increased to 20 per annum the period taken for promotion has increased to 14 years which is likely to increase further if the annual intake is maintained at the same level. For this reason, it is not considered desirable to appoint direct recruits to C.E.S. Group A in large number. In the Indian Railways Service of Engineers, the recruitment to the Junior Scale in Group A is related to the number of posts at the level of Chief Engineer and above and the annual intake has generally been less than the number of posts of Chief Engineers. In the CPWD we have only 12 posts of Chief Engineers and it is, therefore, recommended that the annual intake to Junior Scale Class I thro ugh UPSC competitive Examination should be restricted to 10 only." 19. There can be no doubt that the failure to recruit Assistant Executive Engineers in sufficient numbers, so that when vacancies in the grade of Executive Engineers allocable to the quota of Asstt. Executive Engineers arose from year to year, there would be Asstt Executive Engineers available for promotion to fill such vacancies, was responsible for the gross distortion which took place in the cadre of Executive Engineers over the years.We must in the circumstances hold that Rules 2(iii) and 2(iv) of the Rules of 1976 are violative of Articles 14 and 16 of the Constitution and they must be declared to be unconstitutional and void. It that be so, then obviously the seniority between Assistant Engineers and Assistant Executive Engineers regularly promoted within their respective quota must be determined by the length of continuous officiation in service in the grade o f Executive Engineers, subject to the qualification that in case of Assistant Engineers the length of continuous officiation shall be reckoned from the date when their promotion is regularised by absorption within their lawful quota. 20.
### Response:
1
### Explanation:
it is entirely immaterial, because the constitutional validity of the rotational rule of seniority cannot depend upon what the government thought to be the correct position in regard to the applicability of the quota rule. The question whether the rot ational rule of seniority is constitutionally valid or not has got to be determined in the light of the interpretation placed on the application of the quota rule by the decision in A.K. Subramans case, because that must be accepted as the correct interpretation and in the context of that interpretation, the constitutional validity of the rotational rule of seniority must be judged. But, as pointed out above, we do not think this contention urged on behalf of respondent Nos. 4 to 190 is correct. We are not inclined to accept the submission of respondent Nos. 4 to 190 that under-recruitment of Assistant Executive Engineers took place because the government thought that the quota rule was to be applied only at the stage of confirmation. There is considerable material placed before the court to show that the government rightly understood the quota rule to be applicable at the stage of initial promotion but failed to strictly implement it. Paragraph 4 of the minutes of the meeting held on 14th May, 1968 in the office room of Shri B.R. Patel, Secretary, Ministry of Works and Supply, clearly emphasizes this position by stating that "the intake of Assistant Executive Engineers should be increased by considering 2/3rd of all the temporary and deputation posts in the grade of Executive Engineers and above in the department as permanent ones for the purpose of working out the strength at the junior scale." So also we find a categorical statement to the same effect in the letter dated 19th October, 1971 addressed by Shri Kartar Singh, Joint Secretary to the Government of India, Ministry of Works and Housing a letter to which we have already referred earlier. The Government also took u p a positive stand in the affidavit in reply filed by P.B. Kulkarni in A.K. Subramans case where it was stated:"I submit that the quota rule is to be applied as and when vacancies in the grade of Executive Engineers are required to be filled but as already stated earlier, it has not been possible to apply this quota rule rigidly at the time of officiating promotions as promotions from the grade of Assistant Engineers have been in excess of their quota." (Emphasis supplied).It will thus be seen that the government was under no illusion in regard to the true position relating to the applicability of the quota rule. But the government deliberately resorted to the policy of under-recruitment of Assistant Executive Engineers because, as set out in the Note regarding Cadre Review of the Central Engineers Service Class I, prepared and submitted to the Government in June, 1978, it was felt that "it is not possible to recruit enough officers in Class I junior sc ale to fill up the quota at Executive Engineers level as it would worsen the promotion prospects of direct recruits to class I and make the service totally unattractive". The Note regarding Cadre Review also pointedA perusal of for m VI would indicate that in the next five years the annual recruitment would be of the order of 80 and in the subsequent five years it would be of the order of 40. According to the existing Rules, the vacancies in the grade of Executive Engineers are to be filled up by the promotion of Asstt. Executive Engineers (Group A) and Asstt. Engineers (Group B) in the ratio of 1: 1 Since the annual intake of Asstt. Executive Engineers is to be co-related with the vacancies that would be available in the grade of Executive Engineers, the annual intake of Asstt. Executive Engineers (CES GROUP A) would be 40 in the next five years and 20 in the subsequent five years. It has been already explained in para 2: 3: 6 that when the annual recruitment was less than 10, the direct recruits were able to reach the Junior Administrative grade in 10 to 11 years. When this was subsequently increased to 20 per annum the period taken for promotion has increased to 14 years which is likely to increase further if the annual intake is maintained at the same level. For this reason, it is not considered desirable to appoint direct recruits to C.E.S. Group A in large number. In the Indian Railways Service of Engineers, the recruitment to the Junior Scale in Group A is related to the number of posts at the level of Chief Engineer and above and the annual intake has generally been less than the number of posts of Chief Engineers. In the CPWD we have only 12 posts of Chief Engineers and it is, therefore, recommended that the annual intake to Junior Scale Class I thro ugh UPSC competitive Examination should be restricted to 10 only."There can be no doubt that the failure to recruit Assistant Executive Engineers in sufficient numbers, so that when vacancies in the grade of Executive Engineers allocable to the quota of Asstt. Executive Engineers arose from year to year, there would be Asstt Executive Engineers available for promotion to fill such vacancies, was responsible for the gross distortion which took place in the cadre of Executive Engineers over the years.We must in the circumstances hold that Rules 2(iii) and 2(iv) of the Rules of 1976 are violative of Articles 14 and 16 of the Constitution and they must be declared to be unconstitutional and void. It that be so, then obviously the seniority between Assistant Engineers and Assistant Executive Engineers regularly promoted within their respective quota must be determined by the length of continuous officiation in service in the grade o f Executive Engineers, subject to the qualification that in case of Assistant Engineers the length of continuous officiation shall be reckoned from the date when their promotion is regularised by absorption within their lawful quota.
|
SAVITHA Vs. M/S CHODAMANDALAM M.S. GENERAL INSURNACE COMPANY | NAVIN SINHA, J. 1. Leave granted. 2. The appellant, a housewife, is in appeal against inadequacy of compensation granted to her in a motor accident case. 3. The appellant while travelling in a bus belonging to respondent no.3 on 25.12.2008 met with an accident when a lorry rashly and negligently dashed against the bus. The appellant suffered nine injuries out of which seven were grievous in nature. P.W.4, the Orthopedic Surgeon who operated upon the appellant, deposed that she had suffered 32 per cent total body disability and was not capable of doing household work. The Tribunal awarded a total compensation of Rs.5,82,500/- with interest at the rate of 6%, redetermined by the High Court in appeal at Rs.6,50,350/-. 4. Learned counsel for the appellant submits that the assessment of income at Rs.4,250/- per month was inadequate. The appellant had claimed an income of Rs.6,000/- p.m. from a tailoring business which should have been the basis for assessment of loss of income. The medical opinion of P.W.4 with regard to extent of whole body disability has been arbitrarily reduced to 20%. 5. Learned counsel for respondent no.1 submitted that the High Court has adequately enhanced the compensation which calls for no further interference. 6. We have considered the submissions on behalf of the parties. The appellant failed to lead any evidence in support of her claimed profession as a tailor earning approximately Rs.6,000/- p.m. and therefore it has rightly been rejected. 7. The Tribunal assessed the notional income of the appellant as a housewife at Rs.3,000/- p.m., which has been enhanced by the High Court to Rs.4,250/- and we find no reason to interfere with the same. The appellant has been awarded Rs.3,00,000/- towards medical expenses as she failed to lead acceptable evidence in support of her claim for Rs.4,00,000/-. We find no reason to interfere with the same also. However, we are of the considered opinion that considering the nature of injuries and age of the appellant the award of Rs.25,000/- only towards loss of amenities and future happiness is inadequate and is enhanced to Rs.50,000/-. 8. P.W.4, the Orthopedic Surgeon, deposed that the appellant had suffered nine injuries, of which seven were grievous in nature and she had to undergo two surgeries which left her disabled from doing house work and unable to walk without the aid of crutches. Her whole body disability was medically assessed at 32%. The Tribunal, by hairsplitting the expert evidence assessed the whole body disability at 15%. The High Court for inexplicable reasons opined that it would be reasonable to determine the whole body disability at 20%. 9. The appellant is entitled to loss of future earning on basis of the whole body disability of 32% as opined by P.W.4. The compensation under that head is therefore redrawn awarding Rs.2,12,160/- (Rs.4250 x 12 x 13 x 32%). | 1[ds]6. We have considered the submissions on behalf of the parties. The appellant failed to lead any evidence in support of her claimed profession as a tailor earning approximately Rs.6,000/- p.m. and therefore it has rightly been rejected.7. The Tribunal assessed the notional income of the appellant as a housewife at Rs.3,000/- p.m., which has been enhanced by the High Court to Rs.4,250/- and we find no reason to interfere with the same. The appellant has been awarded Rs.3,00,000/- towards medical expenses as she failed to lead acceptable evidence in support of her claim for Rs.4,00,000/-. We find no reason to interfere with the same also. However, we are of the considered opinion that considering the nature of injuries and age of the appellant the award of Rs.25,000/- only towards loss of amenities and future happiness is inadequate and is enhanced to Rs.50,000/-.8. P.W.4, the Orthopedic Surgeon, deposed that the appellant had suffered nine injuries, of which seven were grievous in nature and she had to undergo two surgeries which left her disabled from doing house work and unable to walk without the aid of crutches. Her whole body disability was medically assessed at 32%. The Tribunal, by hairsplitting the expert evidence assessed the whole body disability at 15%. The High Court for inexplicable reasons opined that it would be reasonable to determine the whole body disability at 20%.9. The appellant is entitled to loss of future earning on basis of the whole body disability of 32% as opined by P.W.4. The compensation under that head is therefore redrawn awarding Rs.2,12,160/- (Rs.4250 x 12 x 13 x 32%). | 1 | 527 | 299 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
NAVIN SINHA, J. 1. Leave granted. 2. The appellant, a housewife, is in appeal against inadequacy of compensation granted to her in a motor accident case. 3. The appellant while travelling in a bus belonging to respondent no.3 on 25.12.2008 met with an accident when a lorry rashly and negligently dashed against the bus. The appellant suffered nine injuries out of which seven were grievous in nature. P.W.4, the Orthopedic Surgeon who operated upon the appellant, deposed that she had suffered 32 per cent total body disability and was not capable of doing household work. The Tribunal awarded a total compensation of Rs.5,82,500/- with interest at the rate of 6%, redetermined by the High Court in appeal at Rs.6,50,350/-. 4. Learned counsel for the appellant submits that the assessment of income at Rs.4,250/- per month was inadequate. The appellant had claimed an income of Rs.6,000/- p.m. from a tailoring business which should have been the basis for assessment of loss of income. The medical opinion of P.W.4 with regard to extent of whole body disability has been arbitrarily reduced to 20%. 5. Learned counsel for respondent no.1 submitted that the High Court has adequately enhanced the compensation which calls for no further interference. 6. We have considered the submissions on behalf of the parties. The appellant failed to lead any evidence in support of her claimed profession as a tailor earning approximately Rs.6,000/- p.m. and therefore it has rightly been rejected. 7. The Tribunal assessed the notional income of the appellant as a housewife at Rs.3,000/- p.m., which has been enhanced by the High Court to Rs.4,250/- and we find no reason to interfere with the same. The appellant has been awarded Rs.3,00,000/- towards medical expenses as she failed to lead acceptable evidence in support of her claim for Rs.4,00,000/-. We find no reason to interfere with the same also. However, we are of the considered opinion that considering the nature of injuries and age of the appellant the award of Rs.25,000/- only towards loss of amenities and future happiness is inadequate and is enhanced to Rs.50,000/-. 8. P.W.4, the Orthopedic Surgeon, deposed that the appellant had suffered nine injuries, of which seven were grievous in nature and she had to undergo two surgeries which left her disabled from doing house work and unable to walk without the aid of crutches. Her whole body disability was medically assessed at 32%. The Tribunal, by hairsplitting the expert evidence assessed the whole body disability at 15%. The High Court for inexplicable reasons opined that it would be reasonable to determine the whole body disability at 20%. 9. The appellant is entitled to loss of future earning on basis of the whole body disability of 32% as opined by P.W.4. The compensation under that head is therefore redrawn awarding Rs.2,12,160/- (Rs.4250 x 12 x 13 x 32%).
### Response:
1
### Explanation:
6. We have considered the submissions on behalf of the parties. The appellant failed to lead any evidence in support of her claimed profession as a tailor earning approximately Rs.6,000/- p.m. and therefore it has rightly been rejected.7. The Tribunal assessed the notional income of the appellant as a housewife at Rs.3,000/- p.m., which has been enhanced by the High Court to Rs.4,250/- and we find no reason to interfere with the same. The appellant has been awarded Rs.3,00,000/- towards medical expenses as she failed to lead acceptable evidence in support of her claim for Rs.4,00,000/-. We find no reason to interfere with the same also. However, we are of the considered opinion that considering the nature of injuries and age of the appellant the award of Rs.25,000/- only towards loss of amenities and future happiness is inadequate and is enhanced to Rs.50,000/-.8. P.W.4, the Orthopedic Surgeon, deposed that the appellant had suffered nine injuries, of which seven were grievous in nature and she had to undergo two surgeries which left her disabled from doing house work and unable to walk without the aid of crutches. Her whole body disability was medically assessed at 32%. The Tribunal, by hairsplitting the expert evidence assessed the whole body disability at 15%. The High Court for inexplicable reasons opined that it would be reasonable to determine the whole body disability at 20%.9. The appellant is entitled to loss of future earning on basis of the whole body disability of 32% as opined by P.W.4. The compensation under that head is therefore redrawn awarding Rs.2,12,160/- (Rs.4250 x 12 x 13 x 32%).
|
ESSAR SHIPPING LTD Vs. THE BOARD OF TRUSTEES FOR THE PORT OF CALCUTTA | the damage was yet to be assessed, an endorsement was given by the Master of the vessel after the vessel was in the Docks for two days even after being loaded.(l) The damage to the loader, according to the evidence led by the defendants-respondent was to the tune of Rs.24.04 lakhs."22. There is one more issue as well, namely, whether the Master of the vessel was told by the Berthing Master to drop the anchor and whether there was any time lag in relaying such instruction by the Master of the vessel which made it further difficult for the Berthing Master. The Division Bench has relied upon this aspect while assessing the fact situation on record but the evidence in that behalf is not clear. In his answer as regards factors which caused the accident, the Berthing Master gave two reasons: ship’s high board i.e. the area above the water surface and the impact of the wind. However, he did not name, delay in regard to anchoring as one of the reasons. The Committee, consisting of experts in the field had also examined witnesses and considered the entire material before it whereafter it arrived at its conclusion. Said Committee also did not put this factor of delay in anchoring the vessel to be one of the reasons. The Division Bench, therefore, ought not to have taken into account said aspect while considering the matter.23. If the emerging facts, as set out earlier are considered, two crucial aspects that emerge are (a) non-intimation on part of the Master of the Vessel about the fact that the vessel had deballasted while at the locks and (b) failure on part of the Berthing Master to apprise himself of the draft of the vessel though he was obliged to check that part. All the other factors were either natural factors, such as the level of the water in the impounded dock or intensity of the wind or were the factors over which neither the Master of the vessel nor the Berthing Master had any direct control. The factors like lack of communication, as was sought to be projected by the plaintiff-appellant, between the tugs and the Berthing Master or the location of the coal loader on the Southern tip of the Jetty or the berthing area could be contributing factors but at the core of the matter were aforesaid two features. Each of those two features are relied upon by either side to put the liability on the opposite side. To make the appellant liable, question would be whether non-intimation of said fact by the Master of the vessel, as indicated above, was so singularly crucial as to justify putting the entire blame on the appellant. We cannot disregard the fact that it was part of the duty of the Berthing Master to check the draft of the vessel before he took over the control of the vessel. Under the bye- laws the vessel had to be under the control of the officer of the Port or the Berthing Master. The Berthing Master was not a new comer or an inexperienced person. He had to his credit the experience of having navigated vessels from the locks to the dock area on at least 1500 previous occasions. If the intensity of the wind was 24 knots when he took over the control of the vessel, it was all the more reason for him to be more careful in checking the draft before assuming control over the vessel. As an officer employed and authorised by the Port, he was having greater knowledge than anyone else how the vessel had to be navigated from the locks to the dock area. We must also give due regard to the facts that a Committee of four experts in the field was appointed by the Government of India to look into the matter and fix the responsibility; that the Committee had recorded statements of all the concerned persons including the Master of the vessel, Berthing Master and all other concerned officials; and that after thorough enquiry the Committee found that the factors which were responsible for the accident were beyond the control of anyone. 24. Considering the entirety of the matter, we find that the assessment of all the relevant factors were duly considered by the Committee in correct perspective and it cannot be concluded that the acts of commission or omission on part of the Master of the vessel alone, were responsible for and resulted in causing the damage to the coal loader. He may be held responsible to a certain extent for his non-intimation as stated above, but the failure on part of the Berthing Master in doing what was expected of him and other factors were also responsible. The conclusion arrived at by the Committee in the circumstances, which weighed with the Single Judge, in our view, is the correct perspective from which the matter is required to be considered. In our assessment, the view taken by the trial court was, therefore, just and correct and that of the Division Bench was erroneous.25. Before we conclude we must deal with the case relied upon by Mr. Tripathi, learned Senior Advocate for the respondent. What was in issue in that case was the alleged negligence of a licensed pilot. What we have found is that it was combination of all factors as concluded by the Committee and the matter could not be put at the level of negligence on part of any individual simplicitor. We, therefore, do not find said case or the discussion therein to be of any relevance in so far as the present matter is concerned. In the assessment that we have made, it would also not be necessary to go into the questions as to the extent of damage to the coal loader and whether the amount as claimed by the defendant-respondent was correctly arrived at and assessed or the interest had to be at the level of 12% or at any lesser rate. | 1[ds]19. At the outset, an important feature of the matter must be noted. The accident in the present matter had evoked attention and the Government of India had appointed a Committee to examine various aspects of the accident and fix responsibility. The Committee consisted of four persons having technical expertise and knowledge in the field. Said Committee found that no specific responsibility could be fixed due to the dynamic situation prevailing at the time of accident and that it was occasioned, as a result of combination of five factors named by the Committee. Every single factor was gone into and at the end of its discussion the Committee had found that individual responsibility could not be assigned in the matter.20. We may now deal with some of the technical terms which have been used in the present matter by the witnesses and the Committee. We have been given to understand that a vessel in which cargo is yet to be loaded, being lighter in weight, can pose problems for effective navigation in high seas. In order to stabilize the vessel certain amount of weight is added which then helps in letting part of the vessel to be under the surface of the water and thereby lend stability. The weight for such purpose could be in any form but normally there are tanks which are filled with water and the weight of such filled water affords stability to the vessel when no cargo is loaded. Adding of such weight is calleda vessel. However, before the loading operations begin, the vessel is required to pump out the water from such tanks and this process is calledThe portion of the vessel which is below the water surface is normally referred to asof the vessel. The larger the draft, the more stable the vessel. As a result ofthe weight of the vessel gets considerably reduced and consequently theof the vessel, namely, the portion below the surface of the water also gets reduced. Resultantly, the surface above the level of the water would get increased and in windy conditions such larger surface of the vessel above water may have impact on navigation. Further, it is common case that Haldia Port proper is not directly touching the sea and from the place where river Hooghli meets the sea, the water is arrested by employing locks. The journey of the vessel from the locks to the berthing area of the docks is through the water so arrested and is to be undertaken under the express guidance of an authorised officer.There is one more issue as well, namely, whether the Master of the vessel was told by the Berthing Master to drop the anchor and whether there was any time lag in relaying such instruction by the Master of the vessel which made it further difficult for the Berthing Master. The Division Bench has relied upon this aspect while assessing the fact situation on record but the evidence in that behalf is not clear. In his answer as regards factors which caused the accident, the Berthing Master gave two reasons:high board i.e. the area above the water surface and the impact of the wind. However, he did not name, delay in regard to anchoring as one of the reasons. The Committee, consisting of experts in the field had also examined witnesses and considered the entire material before it whereafter it arrived at its conclusion. Said Committee also did not put this factor of delay in anchoring the vessel to be one of the reasons. The Division Bench, therefore, ought not to have taken into account said aspect while considering the matter.23. If the emerging facts, as set out earlier are considered, two crucial aspects that emerge are (a) non-intimation on part of the Master of the Vessel about the fact that the vessel had deballasted while at the locks and (b) failure on part of the Berthing Master to apprise himself of the draft of the vessel though he was obliged to check that part. All the other factors were either natural factors, such as the level of the water in the impounded dock or intensity of the wind or were the factors over which neither the Master of the vessel nor the Berthing Master had any direct control. The factors like lack of communication, as was sought to be projected by the plaintiff-appellant, between the tugs and the Berthing Master or the location of the coal loader on the Southern tip of the Jetty or the berthing area could be contributing factors but at the core of the matter were aforesaid two features. Each of those two features are relied upon by either side to put the liability on the opposite side. To make the appellant liable, question would be whether non-intimation of said fact by the Master of the vessel, as indicated above, was so singularly crucial as to justify putting the entire blame on the appellant. We cannot disregard the fact that it was part of the duty of the Berthing Master to check the draft of the vessel before he took over the control of the vessel. Under the bye- laws the vessel had to be under the control of the officer of the Port or the Berthing Master. The Berthing Master was not a new comer or an inexperienced person. He had to his credit the experience of having navigated vessels from the locks to the dock area on at least 1500 previous occasions. If the intensity of the wind was 24 knots when he took over the control of the vessel, it was all the more reason for him to be more careful in checking the draft before assuming control over the vessel. As an officer employed and authorised by the Port, he was having greater knowledge than anyone else how the vessel had to be navigated from the locks to the dock area. We must also give due regard to the facts that a Committee of four experts in the field was appointed by the Government of India to look into the matter and fix the responsibility; that the Committee had recorded statements of all the concerned persons including the Master of the vessel, Berthing Master and all other concerned officials; and that after thorough enquiry the Committee found that the factors which were responsible for the accident were beyond the control of anyone. 24. Considering the entirety of the matter, we find that the assessment of all the relevant factors were duly considered by the Committee in correct perspective and it cannot be concluded that the acts of commission or omission on part of the Master of the vessel alone, were responsible for and resulted in causing the damage to the coal loader. He may be held responsible to a certain extent for his non-intimation as stated above, but the failure on part of the Berthing Master in doing what was expected of him and other factors were also responsible. The conclusion arrived at by the Committee in the circumstances, which weighed with the Single Judge, in our view, is the correct perspective from which the matter is required to be considered. In our assessment, the view taken by the trial court was, therefore, just and correct and that of the Division Bench was erroneous.25. Before we conclude we must deal with the case relied upon by Mr. Tripathi, learned Senior Advocate for the respondent. What was in issue in that case was the alleged negligence of a licensed pilot. What we have found is that it was combination of all factors as concluded by the Committee and the matter could not be put at the level of negligence on part of any individual simplicitor. We, therefore, do not find said case or the discussion therein to be of any relevance in so far as the present matter is concerned. In the assessment that we have made, it would also not be necessary to go into the questions as to the extent of damage to the coal loader and whether the amount as claimed by the defendant-respondent was correctly arrived at and assessed or the interest had to be at the level of 12% or at any lesser rate. | 1 | 7,547 | 1,474 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the damage was yet to be assessed, an endorsement was given by the Master of the vessel after the vessel was in the Docks for two days even after being loaded.(l) The damage to the loader, according to the evidence led by the defendants-respondent was to the tune of Rs.24.04 lakhs."22. There is one more issue as well, namely, whether the Master of the vessel was told by the Berthing Master to drop the anchor and whether there was any time lag in relaying such instruction by the Master of the vessel which made it further difficult for the Berthing Master. The Division Bench has relied upon this aspect while assessing the fact situation on record but the evidence in that behalf is not clear. In his answer as regards factors which caused the accident, the Berthing Master gave two reasons: ship’s high board i.e. the area above the water surface and the impact of the wind. However, he did not name, delay in regard to anchoring as one of the reasons. The Committee, consisting of experts in the field had also examined witnesses and considered the entire material before it whereafter it arrived at its conclusion. Said Committee also did not put this factor of delay in anchoring the vessel to be one of the reasons. The Division Bench, therefore, ought not to have taken into account said aspect while considering the matter.23. If the emerging facts, as set out earlier are considered, two crucial aspects that emerge are (a) non-intimation on part of the Master of the Vessel about the fact that the vessel had deballasted while at the locks and (b) failure on part of the Berthing Master to apprise himself of the draft of the vessel though he was obliged to check that part. All the other factors were either natural factors, such as the level of the water in the impounded dock or intensity of the wind or were the factors over which neither the Master of the vessel nor the Berthing Master had any direct control. The factors like lack of communication, as was sought to be projected by the plaintiff-appellant, between the tugs and the Berthing Master or the location of the coal loader on the Southern tip of the Jetty or the berthing area could be contributing factors but at the core of the matter were aforesaid two features. Each of those two features are relied upon by either side to put the liability on the opposite side. To make the appellant liable, question would be whether non-intimation of said fact by the Master of the vessel, as indicated above, was so singularly crucial as to justify putting the entire blame on the appellant. We cannot disregard the fact that it was part of the duty of the Berthing Master to check the draft of the vessel before he took over the control of the vessel. Under the bye- laws the vessel had to be under the control of the officer of the Port or the Berthing Master. The Berthing Master was not a new comer or an inexperienced person. He had to his credit the experience of having navigated vessels from the locks to the dock area on at least 1500 previous occasions. If the intensity of the wind was 24 knots when he took over the control of the vessel, it was all the more reason for him to be more careful in checking the draft before assuming control over the vessel. As an officer employed and authorised by the Port, he was having greater knowledge than anyone else how the vessel had to be navigated from the locks to the dock area. We must also give due regard to the facts that a Committee of four experts in the field was appointed by the Government of India to look into the matter and fix the responsibility; that the Committee had recorded statements of all the concerned persons including the Master of the vessel, Berthing Master and all other concerned officials; and that after thorough enquiry the Committee found that the factors which were responsible for the accident were beyond the control of anyone. 24. Considering the entirety of the matter, we find that the assessment of all the relevant factors were duly considered by the Committee in correct perspective and it cannot be concluded that the acts of commission or omission on part of the Master of the vessel alone, were responsible for and resulted in causing the damage to the coal loader. He may be held responsible to a certain extent for his non-intimation as stated above, but the failure on part of the Berthing Master in doing what was expected of him and other factors were also responsible. The conclusion arrived at by the Committee in the circumstances, which weighed with the Single Judge, in our view, is the correct perspective from which the matter is required to be considered. In our assessment, the view taken by the trial court was, therefore, just and correct and that of the Division Bench was erroneous.25. Before we conclude we must deal with the case relied upon by Mr. Tripathi, learned Senior Advocate for the respondent. What was in issue in that case was the alleged negligence of a licensed pilot. What we have found is that it was combination of all factors as concluded by the Committee and the matter could not be put at the level of negligence on part of any individual simplicitor. We, therefore, do not find said case or the discussion therein to be of any relevance in so far as the present matter is concerned. In the assessment that we have made, it would also not be necessary to go into the questions as to the extent of damage to the coal loader and whether the amount as claimed by the defendant-respondent was correctly arrived at and assessed or the interest had to be at the level of 12% or at any lesser rate.
### Response:
1
### Explanation:
touching the sea and from the place where river Hooghli meets the sea, the water is arrested by employing locks. The journey of the vessel from the locks to the berthing area of the docks is through the water so arrested and is to be undertaken under the express guidance of an authorised officer.There is one more issue as well, namely, whether the Master of the vessel was told by the Berthing Master to drop the anchor and whether there was any time lag in relaying such instruction by the Master of the vessel which made it further difficult for the Berthing Master. The Division Bench has relied upon this aspect while assessing the fact situation on record but the evidence in that behalf is not clear. In his answer as regards factors which caused the accident, the Berthing Master gave two reasons:high board i.e. the area above the water surface and the impact of the wind. However, he did not name, delay in regard to anchoring as one of the reasons. The Committee, consisting of experts in the field had also examined witnesses and considered the entire material before it whereafter it arrived at its conclusion. Said Committee also did not put this factor of delay in anchoring the vessel to be one of the reasons. The Division Bench, therefore, ought not to have taken into account said aspect while considering the matter.23. If the emerging facts, as set out earlier are considered, two crucial aspects that emerge are (a) non-intimation on part of the Master of the Vessel about the fact that the vessel had deballasted while at the locks and (b) failure on part of the Berthing Master to apprise himself of the draft of the vessel though he was obliged to check that part. All the other factors were either natural factors, such as the level of the water in the impounded dock or intensity of the wind or were the factors over which neither the Master of the vessel nor the Berthing Master had any direct control. The factors like lack of communication, as was sought to be projected by the plaintiff-appellant, between the tugs and the Berthing Master or the location of the coal loader on the Southern tip of the Jetty or the berthing area could be contributing factors but at the core of the matter were aforesaid two features. Each of those two features are relied upon by either side to put the liability on the opposite side. To make the appellant liable, question would be whether non-intimation of said fact by the Master of the vessel, as indicated above, was so singularly crucial as to justify putting the entire blame on the appellant. We cannot disregard the fact that it was part of the duty of the Berthing Master to check the draft of the vessel before he took over the control of the vessel. Under the bye- laws the vessel had to be under the control of the officer of the Port or the Berthing Master. The Berthing Master was not a new comer or an inexperienced person. He had to his credit the experience of having navigated vessels from the locks to the dock area on at least 1500 previous occasions. If the intensity of the wind was 24 knots when he took over the control of the vessel, it was all the more reason for him to be more careful in checking the draft before assuming control over the vessel. As an officer employed and authorised by the Port, he was having greater knowledge than anyone else how the vessel had to be navigated from the locks to the dock area. We must also give due regard to the facts that a Committee of four experts in the field was appointed by the Government of India to look into the matter and fix the responsibility; that the Committee had recorded statements of all the concerned persons including the Master of the vessel, Berthing Master and all other concerned officials; and that after thorough enquiry the Committee found that the factors which were responsible for the accident were beyond the control of anyone. 24. Considering the entirety of the matter, we find that the assessment of all the relevant factors were duly considered by the Committee in correct perspective and it cannot be concluded that the acts of commission or omission on part of the Master of the vessel alone, were responsible for and resulted in causing the damage to the coal loader. He may be held responsible to a certain extent for his non-intimation as stated above, but the failure on part of the Berthing Master in doing what was expected of him and other factors were also responsible. The conclusion arrived at by the Committee in the circumstances, which weighed with the Single Judge, in our view, is the correct perspective from which the matter is required to be considered. In our assessment, the view taken by the trial court was, therefore, just and correct and that of the Division Bench was erroneous.25. Before we conclude we must deal with the case relied upon by Mr. Tripathi, learned Senior Advocate for the respondent. What was in issue in that case was the alleged negligence of a licensed pilot. What we have found is that it was combination of all factors as concluded by the Committee and the matter could not be put at the level of negligence on part of any individual simplicitor. We, therefore, do not find said case or the discussion therein to be of any relevance in so far as the present matter is concerned. In the assessment that we have made, it would also not be necessary to go into the questions as to the extent of damage to the coal loader and whether the amount as claimed by the defendant-respondent was correctly arrived at and assessed or the interest had to be at the level of 12% or at any lesser rate.
|
M/S. Purohit And Company Vs. Khatoonbee And Anr | not in a position to establish her legal right so as to obtain a writ of or in the nature of mandamus directing the appellant herein to reinstate her in service. She was advised to withdraw the writ petition presumably because she would not have obtained any relief in the said proceeding. Even the High Court could have dismissed the writ petition on the ground of delay or could have otherwise refused to exercise its discretionary jurisdiction. The conduct of the respondent in approaching the Labour Court after more than seven years had, therefore, been considered to be a relevant factor by the Labour Court for refusing to grant any relief to her. Such a consideration on the part of the Labour Court cannot be said to be an irrelevant one. The Labour Court in the aforementioned situation cannot be said to have exercised its discretionary jurisdiction injudiciously, arbitrarily and capriciously warranting interference at the hands of the High Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution.21. The matter might have been different had the respondent been appointed by the appellant in a permanent vacancy.22. Both HUDA and the appellant are statutory organizations. The service of the respondent with the Appellant was an ad hoc one. She served the appellant only for a period of one year three months; whereas she had been serving HUDA for more than sixteen years. Even if she is directed to be reinstated in the services of the appellant without back wages as was directed by the High Court, the same would remain an ad hoc one and, thus, her services can be terminated upon compliance of the provisions of the Industrial Disputes Act. It is also relevant to note that there may or may not now be any regular vacancy with the appellant-Bank. We have noticed hereinbefore that in the year 1996, the vacancies had been filled up and a third party right had been created. It has not been pointed out to us that there exists a vacancy. Having considered the equities between the parties, we are of the opinion that it was not a fit case where the High Court should have interfered with the discretionary jurisdiction exercised by the Labour Court.23. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. This appeal is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs."(emphasis is ours)It would be relevant to mention, that the above judgment was rendered in a matter, where the challenge was raised under the provisions of the Industrial Disputes Act, 1947, wherein also no period of limitation is prescribed to approach the Industrial Tribunal. Despite the above, this Court arrived at the conclusion, that a claim raised after a period of 7 years, was not a surviving claim. And therefore, the claim petition was held to be not maintainable.12. Drawing an analogy to the judgments rendered under the Consumer Protection Act, 1986, as also, under the Industrial Disputes Act, 1947, it was the submission of the learned counsel for the appellant, that even though no period of limitation remains prescribed, after the amendment of Section 166 of the Motor Vehicles Act, 1988, whereby sub-Section (3) of Section 166 came to be deleted (with effect from 14.11.1994), yet it would be imperative to determine, whether at the juncture when the claimant approached the Motor Accident Claims Tribunal, the claim was a live and surviving claim.13. We are satisfied, that the submission advanced at the hands of the learned counsel for the appellant merits acceptance. The judgments on which the High Court had relied, and on which the respondents have emphasised, in our considered view, are not an impediment, to the acceptance of the submission canvassed on behalf of the appellant. We say so, because in Dhannalals case (supra) the question of inordinate delay in approaching the Motor Accident Claims Tribunal, was not considered. In the second judgment in C. Padmas case (supra), it was considered. And in the C. Padmas case, the first conclusion drawn in paragraph 12 was "... if otherwise the claim is found genuine...". We are of the considered view, that a claim raised before the Motor Accident Claims Tribunal, can be considered to be genuine, so long as it is a live and surviving claim. We are satisfied in accepting the declared position of law, expressed in the judgments relied upon by the learned counsel for the appellant. It is not as if, it can be open to all and sundry, to approach a Motor Accident Claims Tribunal, to raise a claim for compensation, at any juncture, after the accident had taken place. The individual concerned, must approach the Tribunal within a reasonable time.14. The question of reasonability would naturally depend on the facts and circumstances of each case. We are however, satisfied, that a delay of 28 years, even without reference to any other fact, cannot be considered as a prima facie reasonable period, for approaching the Motor Accident Claims Tribunal. The only justification indicated by the respondents, for initiating proceedings after a lapse of 28 years, emerges from paragraph 4, contained in the application for condonation of delay, filed by the claimants, before the Tribunal. Paragraph 4 aforementioned is extracted hereunder:"4. That the Petitioners are poor person and they have no knowledge about the Law. Also the Respondent has not pay the single pie towards any compensation."15. Having given our thoughtful consideration to the justification expressed at the behest of the respondents, for approaching the Tribunal, after a period of 28 years, we are of the view, that the explanation tendered, cannot be accepted. Undoubtedly, the claim (pertaining to an accident which had occurred on 02.02.1977), in the facts and circumstances of the instant case, was stale, and ought to have been treated as a dead claim, at the point of time, when the respondents approached the Tribunal by filing a claim petition, on 23.02.2005. | 1[ds]13. We are satisfied, that the submission advanced at the hands of the learned counsel for the appellant merits acceptance. The judgments on which the High Court had relied, and on which the respondents have emphasised, in our considered view, are not an impediment, to the acceptance of the submission canvassed on behalf of the appellant. We say so, because in Dhannalals case (supra) the question of inordinate delay in approaching the Motor Accident Claims Tribunal, was not considered. In the second judgment in C. Padmas case (supra), it was considered. And in the C. Padmas case, the first conclusion drawn in paragraph 12 was "... if otherwise the claim is found genuine...". We are of the considered view, that a claim raised before the Motor Accident Claims Tribunal, can be considered to be genuine, so long as it is a live and surviving claim. We are satisfied in accepting the declared position of law, expressed in the judgments relied upon by the learned counsel for the appellant. It is not as if, it can be open to all and sundry, to approach a Motor Accident Claims Tribunal, to raise a claim for compensation, at any juncture, after the accident had taken place. The individual concerned, must approach the Tribunal within a reasonable time.14. The question of reasonability would naturally depend on the facts and circumstances of each case. We are however, satisfied, that a delay of 28 years, even without reference to any other fact, cannot be considered as a prima facie reasonable period, for approaching the Motor Accident Claims Tribunal. The only justification indicated by the respondents, for initiating proceedings after a lapse of 28 years, emerges from paragraph 4, contained in the application for condonation of delay, filed by the claimants, before the Tribunal. Paragraph 4 aforementioned is extractedHaving given our thoughtful consideration to the justification expressed at the behest of the respondents, for approaching the Tribunal, after a period of 28 years, we are of the view, that the explanation tendered, cannot be accepted. Undoubtedly, the claim (pertaining to an accident which had occurred on 02.02.1977), in the facts and circumstances of the instant case, was stale, and ought to have been treated as a dead claim, at the point of time, when the respondents approached the Tribunal by filing a claim petition, on 23.02.2005. | 1 | 5,643 | 460 | ### 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:
not in a position to establish her legal right so as to obtain a writ of or in the nature of mandamus directing the appellant herein to reinstate her in service. She was advised to withdraw the writ petition presumably because she would not have obtained any relief in the said proceeding. Even the High Court could have dismissed the writ petition on the ground of delay or could have otherwise refused to exercise its discretionary jurisdiction. The conduct of the respondent in approaching the Labour Court after more than seven years had, therefore, been considered to be a relevant factor by the Labour Court for refusing to grant any relief to her. Such a consideration on the part of the Labour Court cannot be said to be an irrelevant one. The Labour Court in the aforementioned situation cannot be said to have exercised its discretionary jurisdiction injudiciously, arbitrarily and capriciously warranting interference at the hands of the High Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution.21. The matter might have been different had the respondent been appointed by the appellant in a permanent vacancy.22. Both HUDA and the appellant are statutory organizations. The service of the respondent with the Appellant was an ad hoc one. She served the appellant only for a period of one year three months; whereas she had been serving HUDA for more than sixteen years. Even if she is directed to be reinstated in the services of the appellant without back wages as was directed by the High Court, the same would remain an ad hoc one and, thus, her services can be terminated upon compliance of the provisions of the Industrial Disputes Act. It is also relevant to note that there may or may not now be any regular vacancy with the appellant-Bank. We have noticed hereinbefore that in the year 1996, the vacancies had been filled up and a third party right had been created. It has not been pointed out to us that there exists a vacancy. Having considered the equities between the parties, we are of the opinion that it was not a fit case where the High Court should have interfered with the discretionary jurisdiction exercised by the Labour Court.23. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. This appeal is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs."(emphasis is ours)It would be relevant to mention, that the above judgment was rendered in a matter, where the challenge was raised under the provisions of the Industrial Disputes Act, 1947, wherein also no period of limitation is prescribed to approach the Industrial Tribunal. Despite the above, this Court arrived at the conclusion, that a claim raised after a period of 7 years, was not a surviving claim. And therefore, the claim petition was held to be not maintainable.12. Drawing an analogy to the judgments rendered under the Consumer Protection Act, 1986, as also, under the Industrial Disputes Act, 1947, it was the submission of the learned counsel for the appellant, that even though no period of limitation remains prescribed, after the amendment of Section 166 of the Motor Vehicles Act, 1988, whereby sub-Section (3) of Section 166 came to be deleted (with effect from 14.11.1994), yet it would be imperative to determine, whether at the juncture when the claimant approached the Motor Accident Claims Tribunal, the claim was a live and surviving claim.13. We are satisfied, that the submission advanced at the hands of the learned counsel for the appellant merits acceptance. The judgments on which the High Court had relied, and on which the respondents have emphasised, in our considered view, are not an impediment, to the acceptance of the submission canvassed on behalf of the appellant. We say so, because in Dhannalals case (supra) the question of inordinate delay in approaching the Motor Accident Claims Tribunal, was not considered. In the second judgment in C. Padmas case (supra), it was considered. And in the C. Padmas case, the first conclusion drawn in paragraph 12 was "... if otherwise the claim is found genuine...". We are of the considered view, that a claim raised before the Motor Accident Claims Tribunal, can be considered to be genuine, so long as it is a live and surviving claim. We are satisfied in accepting the declared position of law, expressed in the judgments relied upon by the learned counsel for the appellant. It is not as if, it can be open to all and sundry, to approach a Motor Accident Claims Tribunal, to raise a claim for compensation, at any juncture, after the accident had taken place. The individual concerned, must approach the Tribunal within a reasonable time.14. The question of reasonability would naturally depend on the facts and circumstances of each case. We are however, satisfied, that a delay of 28 years, even without reference to any other fact, cannot be considered as a prima facie reasonable period, for approaching the Motor Accident Claims Tribunal. The only justification indicated by the respondents, for initiating proceedings after a lapse of 28 years, emerges from paragraph 4, contained in the application for condonation of delay, filed by the claimants, before the Tribunal. Paragraph 4 aforementioned is extracted hereunder:"4. That the Petitioners are poor person and they have no knowledge about the Law. Also the Respondent has not pay the single pie towards any compensation."15. Having given our thoughtful consideration to the justification expressed at the behest of the respondents, for approaching the Tribunal, after a period of 28 years, we are of the view, that the explanation tendered, cannot be accepted. Undoubtedly, the claim (pertaining to an accident which had occurred on 02.02.1977), in the facts and circumstances of the instant case, was stale, and ought to have been treated as a dead claim, at the point of time, when the respondents approached the Tribunal by filing a claim petition, on 23.02.2005.
### Response:
1
### Explanation:
13. We are satisfied, that the submission advanced at the hands of the learned counsel for the appellant merits acceptance. The judgments on which the High Court had relied, and on which the respondents have emphasised, in our considered view, are not an impediment, to the acceptance of the submission canvassed on behalf of the appellant. We say so, because in Dhannalals case (supra) the question of inordinate delay in approaching the Motor Accident Claims Tribunal, was not considered. In the second judgment in C. Padmas case (supra), it was considered. And in the C. Padmas case, the first conclusion drawn in paragraph 12 was "... if otherwise the claim is found genuine...". We are of the considered view, that a claim raised before the Motor Accident Claims Tribunal, can be considered to be genuine, so long as it is a live and surviving claim. We are satisfied in accepting the declared position of law, expressed in the judgments relied upon by the learned counsel for the appellant. It is not as if, it can be open to all and sundry, to approach a Motor Accident Claims Tribunal, to raise a claim for compensation, at any juncture, after the accident had taken place. The individual concerned, must approach the Tribunal within a reasonable time.14. The question of reasonability would naturally depend on the facts and circumstances of each case. We are however, satisfied, that a delay of 28 years, even without reference to any other fact, cannot be considered as a prima facie reasonable period, for approaching the Motor Accident Claims Tribunal. The only justification indicated by the respondents, for initiating proceedings after a lapse of 28 years, emerges from paragraph 4, contained in the application for condonation of delay, filed by the claimants, before the Tribunal. Paragraph 4 aforementioned is extractedHaving given our thoughtful consideration to the justification expressed at the behest of the respondents, for approaching the Tribunal, after a period of 28 years, we are of the view, that the explanation tendered, cannot be accepted. Undoubtedly, the claim (pertaining to an accident which had occurred on 02.02.1977), in the facts and circumstances of the instant case, was stale, and ought to have been treated as a dead claim, at the point of time, when the respondents approached the Tribunal by filing a claim petition, on 23.02.2005.
|
Mohsin Ali & Ors Vs. State Of Madhya Pradesh | by considerations of gratitude for the valuable services rendered by the grantee. The object of conferring these three-fold benefits was the same, namely, to secure to the retiring servant a handsome maintenance and comfortable residence for the rest of his life.In other words, all the three benefits granted under this Fireman were cognate benefits, arising out of the same occasion, and made with the same object in view viz., to enable the grantee to live comfortably in retirement. These related benefits could be compendiously described as "retirement benefits". The first two benefits were indisputably pensioner benefits ensuring only for the lifetime of the grantee. All the three kindred benefits, including the one in question, were expressly meant for the person of the grantee. This is clear from the word apko which means "to you" in the phrase "apko inayat atta kiya jata hai" The conjunction "aur" (and) at the commencement of the last sentence of the Fireman inextricably links the grant of interest in the residential house, with the pensionary benefits conferred in the foregoing parts of the Fireman. In short, all the threefold benefits granted under this Fireman are off-spring of the same genus. The language of the Fireman relating directly to the grant in question therefore takes its colour from the preceding parts of the Fireman relating to the pensionary benefits conferred on the grantee for life. Thus if the crucial words quoted above are construed in the context of the akin grants, and - according to the general tenor of the Fireman as a whole, it becomes clear that the intention of the Ruler was to grant only a right of residence limited to the lifetime of the grantee - and not an absolute estate in the house.28-A. The surrounding circumstances also confirm the interpretation adopted by us. The first such circumstance was that at the time of the grant, the grantee had no issue, nor any near relation. Indeed, he died widowless and issueless. In this context, coupled with the omission of any words such as to "grantee and his heirs or "nasalan-darnasalan" indicating the grant to be heritable, it would be reasonable to hold that the grant was intended to be for life only.29. There is yet another circumstances which points towards the same conclusion. It is that at the time of the grant the grantee was already residing in the suit house. In this context, the word "sakoonti (residential) in the last part of the Firman used in association with makan(house) assumes significance. It suggests that the intention of the grantor was to convey to the grantee no more than a right of residence in the house which the latter was already enjoying.30. The letter Ex. P-3 written by the Chief Engineer on 29-6-1938, is of hardly any assistance in construing the grant made three or four years earlier. It could not be treated as contemporaneous conduct of the grantor or his agent, which could legitimately be taken into consideration in construing the grant.31. On parity of reasoning, it is doubtful whether the fact of eviction of Syed Mohammed Ali from the suit house, about two months after the death of the grantee and about 15 years after the grant, could justifiably be called in aid as a "surrounding circumstances" to interpret the Fireman dated 24-10-1934. The High Court has taken this circumstance also into account.We need only say that even after excluding this circumstance, there remains sufficient and sound foundation in the language of the Firman and contemporaneous surrounding circumstances, including the common genus, the same occasion and purpose of the three seeded grant, to hold that the Ruler had conferred only a limited estate in the suit property for the lifetime of the grantee.32. The argument advanced on behalf of the appellants: that the grant in question was a hiba made in accordance with Mohammedan Law by one Muslim to another, has been stated only to be rejected. To all intents and purposes, it was a grant made by an absolute Ruler to his subject who had rendered long meritorious services, on the eve of his retirement. Reference to Muslim law is therefore misconceived. We may, however, say in passing that even according to the observations of the Privy Council relied upon by the Counsel, creation of an interest limited in point of time, in the usufruct of the property is not necessarily repugnant to Muslim Law.33. Mr. Panjwani has advanced an alternative argument, also, to support the decision of the High Court. The contention is that even if it is assumed that the house had been given to Sir Liaqat Ali absolutely, then also the grant had come to an end on resumption of the possession of the house by the Government of Bhopal in 1947, and thereafter the grant continued to be non est because after the merger of the State of Bhopal on 1-6-1949, it was not recognised by the Government of India or by the new Government of Madhya Pradesh after Bhopal became a part of that State on 1-11-l95l. Rather, as per Ex. P-6, the new Government after the disappearance of Bhopal State from the scene, repudiated the grant. In these circumstances, submits the Counsel, the appellants did not carry with them the right, if any, they had under the grant as subjects of the Ex-Sovereign Ruler of Bhopal and after the extinction of Bhopal State and its Ruler, they had only such rights as were granted or recognised by the new Sovereign i. e. the Central Government. According to the Counsel, the plaintiffs claim was not enforceable in the municipal courts. Reliance has been placed on the decision of this Court in State of Gujarat v. Vora Fiddali Badruddin Mithibarwale, (1964) 6 SCR 461 at p. 551 = (AIR 1964 SC 1043 at p. 1078).34. There is no foundation for the plea either in the pleadings or in the issues. We therefore do not allow it to be raised for the first time in this Court. | 0[ds]17. This general rule is, however, capable of important relaxations in favour of the subject. If the intention of the Sovereign is obvious from the document which in precise, unequivocal terms defines the extent and nature of the benefit conferred, it must take, effect. No question of seeking extrinsic aid to its construction arises. If the grant is for valuable consideration it must be construed strictly in favour of the grantee, for the honor of the Sovereign and where two constructions are possible, one valid and the other void, that which is valid ought to be preferred, for the honour of the Sovereign, ought to be more regarded than the Sovereigns profit. Where, however, two interpretations may be given to the grant, both of which are good, that which is most favourable to the Crown is in many casesWe are not persuaded to accept the appellants contention that the Fireman conveys, in precise and unequivocal terms, full and absolute ownership of the suit house to the grantee. In our opinion, the language of the last sentence of the Fireman, which is the sheet-anchor of this contention, even by itself, does not indubitably and unequivocally indicate that the intention of the Ruler was to grant an absolute estate. The Firman is conspicuous by the non-employment of any words declaring that thenceforth the grantee would have a heritable estate in the house or that the grantor had transferred all his rights in the property, absolutely in favour of the grantee. There is no use of such words the grant would take effect as "nasalandar-nasalan", "from generation to generation" "warsan, kaiam u qaman" "to grantee and his heirs" etc. pointing towards the creation of a heritable estate. Even the use of such terms by itself has been held to be an inconclusive indication of the grantors intention to confer absolute, heritable rights.It is not necessary to multiply authorities with regard to the construction of such customary terms which could possibly be indicative of the grantors intention to make a heritable grant, because the Firman Ex. P-1, is bereft of all such terms. It will be sufficient to say that the language of the Fireman does not in clear and unambiguous terms express an intention to create an absolute estate in favour of the grantee and his heirs. The Firman has therefore to be construed in accordance with the well-established rule of construction applicable to Sovereign grants.26. Another cardinal canon of interpretation to be borne in mind is that in order to ascertain the real intention of the grantor, the Firman has to be read as a whole. It will not be correct - as the appellants want us to do - to dissect the Fireman into three watertight compartments or to read the last sentence of the Fireman out of the context. It is also permissible to consider the surrounding circumstances and the occasion on which this grant was made as legitimate aids to construction of theIn short, all the threefold benefits granted under this Fireman are off-spring of the same genus. The language of the Fireman relating directly to the grant in question therefore takes its colour from the preceding parts of the Fireman relating to the pensionary benefits conferred on the grantee for life. Thus if the crucial words quoted above are construed in the context of the akin grants, and - according to the general tenor of the Fireman as a whole, it becomes clear that the intention of the Ruler was to grant only a right of residence limited to the lifetime of the grantee - and not an absolute estate in the house.There is yet another circumstances which points towards the same conclusion. It is that at the time of the grant the grantee was already residing in the suit house. In this context, the word "sakoonti (residential) in the last part of the Firman used in association with makan(house) assumes significance. It suggests that the intention of the grantor was to convey to the grantee no more than a right of residence in the house which the latter was already enjoying.30. The letter Ex. P-3 written by the Chief Engineer on 29-6-1938, is of hardly any assistance in construing the grant made three or four years earlier. It could not be treated as contemporaneous conduct of the grantor or his agent, which could legitimately be taken into consideration in construing theneed only say that even after excluding this circumstance, there remains sufficient and sound foundation in the language of the Firman and contemporaneous surrounding circumstances, including the common genus, the same occasion and purpose of the three seeded grant, to hold that the Ruler had conferred only a limited estate in the suit property for the lifetime of the grantee.On parity of reasoning, it is doubtful whetherthe fact of eviction of Syed Mohammed Ali from the suit house, about two months after the death of the grantee and about 15 years after the grant, could justifiably be called in aid as a "surrounding circumstances" to interpret the Fireman datedmay, however, say in passing that even according to the observations of the Privy Council relied upon by the Counsel, creation of an interest limited in point of time, in the usufruct of the property is not necessarily repugnant to Muslim Law.There is no foundation for the plea either in the pleadings or in the issues. We therefore do not allow it to be raised for the first time in this Court.The argument advanced on behalf of the appellants: that the grant in question was a hiba made in accordance with Mohammedan Law by one Muslim to another, has been stated only to be rejected. To all intents and purposes, it was a grant made by an absolute Ruler to his subject who had rendered long meritorious services, on the eve of his retirement. Reference to Muslim law is therefore misconceived. Wemay, however, say in passing that even according to the observations of the Privy Council relied upon by the Counsel, creation of an interest limited in point of time, in the usufruct of the property is not necessarily repugnant to Muslim Law.The surrounding circumstances also confirm the interpretation adopted by us. The first such circumstance was that at the time of the grant, the grantee had no issue, nor any near relation. Indeed, he died widowless and issueless. In this context, coupled with the omission of any words such as to "grantee and his heirs orindicating the grant to be heritable, it would be reasonable to hold that the grant was intended to be for life only. | 0 | 4,407 | 1,209 | ### 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:
by considerations of gratitude for the valuable services rendered by the grantee. The object of conferring these three-fold benefits was the same, namely, to secure to the retiring servant a handsome maintenance and comfortable residence for the rest of his life.In other words, all the three benefits granted under this Fireman were cognate benefits, arising out of the same occasion, and made with the same object in view viz., to enable the grantee to live comfortably in retirement. These related benefits could be compendiously described as "retirement benefits". The first two benefits were indisputably pensioner benefits ensuring only for the lifetime of the grantee. All the three kindred benefits, including the one in question, were expressly meant for the person of the grantee. This is clear from the word apko which means "to you" in the phrase "apko inayat atta kiya jata hai" The conjunction "aur" (and) at the commencement of the last sentence of the Fireman inextricably links the grant of interest in the residential house, with the pensionary benefits conferred in the foregoing parts of the Fireman. In short, all the threefold benefits granted under this Fireman are off-spring of the same genus. The language of the Fireman relating directly to the grant in question therefore takes its colour from the preceding parts of the Fireman relating to the pensionary benefits conferred on the grantee for life. Thus if the crucial words quoted above are construed in the context of the akin grants, and - according to the general tenor of the Fireman as a whole, it becomes clear that the intention of the Ruler was to grant only a right of residence limited to the lifetime of the grantee - and not an absolute estate in the house.28-A. The surrounding circumstances also confirm the interpretation adopted by us. The first such circumstance was that at the time of the grant, the grantee had no issue, nor any near relation. Indeed, he died widowless and issueless. In this context, coupled with the omission of any words such as to "grantee and his heirs or "nasalan-darnasalan" indicating the grant to be heritable, it would be reasonable to hold that the grant was intended to be for life only.29. There is yet another circumstances which points towards the same conclusion. It is that at the time of the grant the grantee was already residing in the suit house. In this context, the word "sakoonti (residential) in the last part of the Firman used in association with makan(house) assumes significance. It suggests that the intention of the grantor was to convey to the grantee no more than a right of residence in the house which the latter was already enjoying.30. The letter Ex. P-3 written by the Chief Engineer on 29-6-1938, is of hardly any assistance in construing the grant made three or four years earlier. It could not be treated as contemporaneous conduct of the grantor or his agent, which could legitimately be taken into consideration in construing the grant.31. On parity of reasoning, it is doubtful whether the fact of eviction of Syed Mohammed Ali from the suit house, about two months after the death of the grantee and about 15 years after the grant, could justifiably be called in aid as a "surrounding circumstances" to interpret the Fireman dated 24-10-1934. The High Court has taken this circumstance also into account.We need only say that even after excluding this circumstance, there remains sufficient and sound foundation in the language of the Firman and contemporaneous surrounding circumstances, including the common genus, the same occasion and purpose of the three seeded grant, to hold that the Ruler had conferred only a limited estate in the suit property for the lifetime of the grantee.32. The argument advanced on behalf of the appellants: that the grant in question was a hiba made in accordance with Mohammedan Law by one Muslim to another, has been stated only to be rejected. To all intents and purposes, it was a grant made by an absolute Ruler to his subject who had rendered long meritorious services, on the eve of his retirement. Reference to Muslim law is therefore misconceived. We may, however, say in passing that even according to the observations of the Privy Council relied upon by the Counsel, creation of an interest limited in point of time, in the usufruct of the property is not necessarily repugnant to Muslim Law.33. Mr. Panjwani has advanced an alternative argument, also, to support the decision of the High Court. The contention is that even if it is assumed that the house had been given to Sir Liaqat Ali absolutely, then also the grant had come to an end on resumption of the possession of the house by the Government of Bhopal in 1947, and thereafter the grant continued to be non est because after the merger of the State of Bhopal on 1-6-1949, it was not recognised by the Government of India or by the new Government of Madhya Pradesh after Bhopal became a part of that State on 1-11-l95l. Rather, as per Ex. P-6, the new Government after the disappearance of Bhopal State from the scene, repudiated the grant. In these circumstances, submits the Counsel, the appellants did not carry with them the right, if any, they had under the grant as subjects of the Ex-Sovereign Ruler of Bhopal and after the extinction of Bhopal State and its Ruler, they had only such rights as were granted or recognised by the new Sovereign i. e. the Central Government. According to the Counsel, the plaintiffs claim was not enforceable in the municipal courts. Reliance has been placed on the decision of this Court in State of Gujarat v. Vora Fiddali Badruddin Mithibarwale, (1964) 6 SCR 461 at p. 551 = (AIR 1964 SC 1043 at p. 1078).34. There is no foundation for the plea either in the pleadings or in the issues. We therefore do not allow it to be raised for the first time in this Court.
### Response:
0
### Explanation:
honour of the Sovereign, ought to be more regarded than the Sovereigns profit. Where, however, two interpretations may be given to the grant, both of which are good, that which is most favourable to the Crown is in many casesWe are not persuaded to accept the appellants contention that the Fireman conveys, in precise and unequivocal terms, full and absolute ownership of the suit house to the grantee. In our opinion, the language of the last sentence of the Fireman, which is the sheet-anchor of this contention, even by itself, does not indubitably and unequivocally indicate that the intention of the Ruler was to grant an absolute estate. The Firman is conspicuous by the non-employment of any words declaring that thenceforth the grantee would have a heritable estate in the house or that the grantor had transferred all his rights in the property, absolutely in favour of the grantee. There is no use of such words the grant would take effect as "nasalandar-nasalan", "from generation to generation" "warsan, kaiam u qaman" "to grantee and his heirs" etc. pointing towards the creation of a heritable estate. Even the use of such terms by itself has been held to be an inconclusive indication of the grantors intention to confer absolute, heritable rights.It is not necessary to multiply authorities with regard to the construction of such customary terms which could possibly be indicative of the grantors intention to make a heritable grant, because the Firman Ex. P-1, is bereft of all such terms. It will be sufficient to say that the language of the Fireman does not in clear and unambiguous terms express an intention to create an absolute estate in favour of the grantee and his heirs. The Firman has therefore to be construed in accordance with the well-established rule of construction applicable to Sovereign grants.26. Another cardinal canon of interpretation to be borne in mind is that in order to ascertain the real intention of the grantor, the Firman has to be read as a whole. It will not be correct - as the appellants want us to do - to dissect the Fireman into three watertight compartments or to read the last sentence of the Fireman out of the context. It is also permissible to consider the surrounding circumstances and the occasion on which this grant was made as legitimate aids to construction of theIn short, all the threefold benefits granted under this Fireman are off-spring of the same genus. The language of the Fireman relating directly to the grant in question therefore takes its colour from the preceding parts of the Fireman relating to the pensionary benefits conferred on the grantee for life. Thus if the crucial words quoted above are construed in the context of the akin grants, and - according to the general tenor of the Fireman as a whole, it becomes clear that the intention of the Ruler was to grant only a right of residence limited to the lifetime of the grantee - and not an absolute estate in the house.There is yet another circumstances which points towards the same conclusion. It is that at the time of the grant the grantee was already residing in the suit house. In this context, the word "sakoonti (residential) in the last part of the Firman used in association with makan(house) assumes significance. It suggests that the intention of the grantor was to convey to the grantee no more than a right of residence in the house which the latter was already enjoying.30. The letter Ex. P-3 written by the Chief Engineer on 29-6-1938, is of hardly any assistance in construing the grant made three or four years earlier. It could not be treated as contemporaneous conduct of the grantor or his agent, which could legitimately be taken into consideration in construing theneed only say that even after excluding this circumstance, there remains sufficient and sound foundation in the language of the Firman and contemporaneous surrounding circumstances, including the common genus, the same occasion and purpose of the three seeded grant, to hold that the Ruler had conferred only a limited estate in the suit property for the lifetime of the grantee.On parity of reasoning, it is doubtful whetherthe fact of eviction of Syed Mohammed Ali from the suit house, about two months after the death of the grantee and about 15 years after the grant, could justifiably be called in aid as a "surrounding circumstances" to interpret the Fireman datedmay, however, say in passing that even according to the observations of the Privy Council relied upon by the Counsel, creation of an interest limited in point of time, in the usufruct of the property is not necessarily repugnant to Muslim Law.There is no foundation for the plea either in the pleadings or in the issues. We therefore do not allow it to be raised for the first time in this Court.The argument advanced on behalf of the appellants: that the grant in question was a hiba made in accordance with Mohammedan Law by one Muslim to another, has been stated only to be rejected. To all intents and purposes, it was a grant made by an absolute Ruler to his subject who had rendered long meritorious services, on the eve of his retirement. Reference to Muslim law is therefore misconceived. Wemay, however, say in passing that even according to the observations of the Privy Council relied upon by the Counsel, creation of an interest limited in point of time, in the usufruct of the property is not necessarily repugnant to Muslim Law.The surrounding circumstances also confirm the interpretation adopted by us. The first such circumstance was that at the time of the grant, the grantee had no issue, nor any near relation. Indeed, he died widowless and issueless. In this context, coupled with the omission of any words such as to "grantee and his heirs orindicating the grant to be heritable, it would be reasonable to hold that the grant was intended to be for life only.
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